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How to vary a Parenting Order

About the Author: Kristdel Bolog

Kristdel practices solely in Family Law has been a Partner at The Family Lawyer since June 2019. Aside from her amazing ability to recite from memory the entire “Ode to Spot” by Commander Data, she has a wealth of knowledge and practical experience from a decade in the field of family law. Kristdel’s passion for the law and a love of helping people through difficult times enables her to put peoples minds at ease, even during complicated or bitter family court proceedings. As our resident “empath” she is The Family Lawyers’ Counsellor and is always there to listen to her colleagues or clients and bring a smile to their faces. Her nickname around the office is “the nerd”, a badge she wears proudly. Kristdel is hardworking, knowledgeable and dedicated to getting great outcomes for her clients. You can contact her at kbolog@thefamilylawyer.com.au or on 03 8657 3751.
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June 17, 2020

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Application to Vary Parenting Orders

If you have previously gone through the court process and have parenting orders which are no longer working, you may be able to apply to have them varied.

Where a person wishes to vary an existing parenting order, the court will usually need to be satisfied that a substantial change in circumstances had occurred, or that important information had not been disclosed when the existing orders were made.  This is famously referred to as the Rice and Asplund test.

The principle set down by Rice v Aspland, by the Full Court of the Family Court is that before it would review Final Orders, which include Consent Orders, in relation to Parenting matters, it would first need to be satisfied that there had been a significant change in circumstances since the making of the Final Orders.

The purpose of the rule in Rice v Aspland is to protect children from being exposed to ongoing litigation.

In deciding whether there has been a significant change of circumstances, the Court will consider the changes in circumstance together with the facts of each matter.

Change alone is not enough for the court to accept such an application, as change is a regular occurrence in one’s everyday life. The changes would need to be of a serious nature to warrant a variation of the Final Orders. Whilst there are no specific set or circumstances which would automatically satisfy the rule, there are a number of situations where parties may have a higher chance of success such as:

  • Where one parent is seeking to relocate with the children;
  • At the time the Final Orders were made there was relevant information which had not been made available to the Court prior to the making of those Orders;
  • The parties have since agreed to and entered into a new parenting arrangement (for example a Parenting Plan);
  • A substantial period of time has elapsed between the Final Orders being made and the Application being brought;
  • One or more of the parties has re-partnered or remarried;
  • There has been abuse of the children; or
  • A party to the proceedings or the child or children are of ill-health.

Some cases setting out examples of the situations mentioned above include:

Watson v Watson [2018] FCCA: application bought five years after orders made, depends on nature of changes sought, only ‘relatively confined’ changes were sought and initial orders implicitly recognised inevitability of changes in circumstances as children grew older. Court is not bound by previous assessments of a Child’s best interests as these are not “immutably fixed”.

Reid & Lynch [2010] FAMCAFC 184: Father bought a claim alleging changed circumstances when child’s mother relocated to distant location with new fiancée, father alleged he was depressed when he signed the orders allowing mother to relocate and did not fully understand what he consented to; judge focused on stability in child’s life and found no significant change in circumstances. Not understanding the implication of consent orders when signed does not appear to warrant a significant change in circumstances.

Morton v Berry [2014] FamCAFC 208: Application bought 2.5 years after consent orders made, child now expressed strong views indicating a desire to live with father which constituted a significant change in circumstances; change in child’s views can constitute a significant change in circumstances.

Searson & Searson [2017] FamCAFC 119: Application bought 15 months after consent orders made; mother wanted to relocate from Melbourne to QLD with three children to live with new partner, have more children with new partner and improve her financial position; father argued no significant change in circumstances as mother was with same partner when original orders made and already in financial distress. Court held was a significant change as new partner now had day to day role in children’s life, mother could share expenses and childcare commitments with partner and these issues were substantial and could not have been contemplated at time when consent orders made.

Our experienced legal team can assist you with considering your options for reaching an agreement regarding your children, get in touch with our lawyers today by calling 03 8657 3751 or via email enquiries@thefamilylawyer.com.au

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