Varying a Parenting Order
Posted on 23 January 2023
Geoff Munce
Varying a PARENTING Order
Final parenting orders are made at a final hearing at court or where parents reach an agreement and consent orders are filed with the court. After final parenting orders are made, a parent may seek to vary those orders. This can be achieved through agreement between the parents or, where an agreement cannot be reached, attendance at mediation to revisit the parenting arrangements. Where parents cannot reach an agreement to vary the orders outside of court, a party may make an application to the Court for the Court to decide whether it is in the best interests of the child to review and change the order.
When considering varying a parenting order, the primary factors the Court looks at are the child’s right to have a meaningful relationship with both parents and other significant people such as grandparents, and the child’s right to be protected from abuse, violence and neglect.
In the case of Rice & Asplund (1979) FLC 90-725, orders were made that the husband has custody of the daughter and the wife has access. Later, the wife applied for and was granted custody of the child. The husband appealed the finding based on the grounds that the Judge should not have changed a prior final parenting order unless there had been a substantial change in circumstances. The mother argued that there was a material change in circumstances by which she had stabilised her accommodation, had married and the child was about to commence school, meaning the original order no longer reflected the best interests of the child.
It was held that there needs to be “evidence of a significant change in circumstances” for the Court to consider changing the final order. This is because the Court considers that continuous litigation over children is generally not in their best interests. The Court will likely object to an application where the circumstances were materially similar to those which existed during the original proceedings.
The Court will consider whether the change in circumstances is significant enough, such change having arisen since the final orders were made being, for example:
- New allegations of sexual abuse, drug use by one party, or family violence
- A substantial period of time has elapsed between the original orders and the new application and the children’s needs or wishes have changed
- The original Orders are no longer reflective of the current arrangements for the children;
- That there was serious misinterpretation or later breaches of the orders.
The change of fresh circumstances must be such that on “being satisfied of its existence, the Court will be left in no doubt that it was necessary to relitigate the parenting issues” (King v Finneran [2001] FamCA 344; 2001 FLC 93). That is, the new circumstance must be so different from the time when the original orders were made, that it would be like litigating an entirely new matter and the benefits of reopening the matter would greatly outweigh the negative impact litigation may have on the parties.
Children require stability and consistency and an application to vary a parenting order should be weighed against the best interests of the children and should not be taken lightly. Even if a change of circumstances is established, the Court will then determine if a variation of the order is in the child’s best interests.
How can Omnia Legal Assist with your Family LAw Matter?
If you are considering making an application to the Court to vary the final parenting Orders that are in place in your matter, please reach out to one of our family lawyers who can assist you before you make your application about what other solutions you may have available to you.
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