Final Parenting Orders are Orders made by the Court that detail the parenting arrangements for a child or children. These Orders can be made either by agreement between parties or, if the parties are unable to agree to arrangements, by a judge in the course of legal proceedings.
When the Court makes Orders, it does so on the basis that those Orders are final and will remain in place until the child turns 18. However, circumstances often change, and it is not always the case that Orders made by the Court will continue to be appropriate and effective.
In these circumstances, a parent may wish to vary the existing Orders in consideration of these changing circumstances.
If the parents can agree to a variation of the agreement, they can file an Application for Consent Orders that varies the original Orders.
If, however, one parent is seeking to unilaterally vary the Orders, they will need to bring an Application before the Court to seek the variation.
To succeed in such an application, the Court must be satisfied that there has been a significant change in circumstances for the child or the parties since the date when the Final Orders were made and that varying Orders would be in the best interests of the child.
This rule was established in the case of Rice v Asplund (1979).
What happened in the case of Rice v Asplund?’
In Rice v Asplund, the Court had made final Orders for a three-year-old child to live with the father.
Around nine months after this Order was made the mother filed an Application to vary the final Orders.
The mother’s Application sought Orders that the daughter would live with her and spend time with the father on the basis that there had been significant changes in the circumstances since the making of the Final Orders.
Specifically, she argued that since the Final Orders were made she had stabilised her accommodation, had married, and that the child was about to commence schooling.
The mother submitted that these changing circumstances meant that the existing Orders no longer reflected the best interests of the child.
The mother was successful in this application, and the Court agreed to vary the Orders in accordance with the mother’s application.
When considering the matter, Chief Justice Evatt made comments that the Court:
“…should not lightly entertain an application… To do so would be to invite endless litigation for change is an ever-present factor in human affairs…
“There must be evidence of a significant change in circumstances.”
It is clear from these remarks that not every change in circumstances will meet the high threshold to have final Orders varied by the Court.
There must be a significant change in circumstances, which would justify that the Orders being varied are in the best interests of the child.
What constitutes a significant change of circumstances?
As highlighted by Chief Justice Evatt, change alone will not be enough for the Court to accept an Application to change final Orders.
The change needs to be significant enough to warrant a variation to protect the best interests of the child.
There are no prescribed changes that automatically satisfy the rule. Each matter turns on its own facts, and whether the alleged change is sufficient to satisfy the rule will be a matter for the Court to determine.
There are, however, several situations where the Court has previously been satisfied that the threshold has been met, which provide a useful guide for parties to follow.
Examples of these are as follows:
- The living situation of the parties has significantly changed;
- A party is seeking to relocate with the child;
- The current Orders were made without all the relevant information having been made available to the Court prior to the making of those Orders;
- The parties have since consented to new parenting arrangements, such as entering into a new Parenting Plan, and the current Orders are no longer reflective of the actual arrangements for the child;
- 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 child;
- A party to the proceedings or the child are of ill-health;
How do you seek a variation to Final Parenting Orders?
Before seeking to vary Orders, a party should give strong consideration to whether they are likely to meet the Rice v Asplund threshold. An application to vary Orders that is without merit is likely to be dismissed by the Court, and may result in the unsuccessful party being liable for the other parent’s legal costs.
Because the variation of a final Order is a litigious matter, the party seeking to change final Orders must attempt to resolve the situation through the usual pre-court action procedures.
This includes making an attempt at Family Dispute Resolution Conferencing unless circumstances apply that would exempt the party from having this undertaken.
If the parents can agree to new terms, Orders can be made by the Court by consent.
If the parents do not agree, then the parent seeking the variation must file an Initiating Application before the Court, seeking the variation.
When filing the Application, the parent should also include an affidavit that clearly outlines the circumstances of the parties, and why the current Orders are no longer appropriate and ought to be varied.
As highlighted above, the Court will only consider varying the orders if it is satisfied that the test outlined in the case of Rice v Asplund has been met, and that changing the existing Orders is in the best interests of the child.
Conclusion
The Court is reluctant to vary final Parenting Orders and expose children to ongoing litigation.
As such, any parent contemplating an application to vary orders should carefully consider the prospects of success prior to commencing proceedings.
Unless there have been substantial changes since the original orders, that render the existing Orders inappropriate or ineffective, such an application will not succeed.
Even if there has been a significant change in circumstances and the rule in Rice v Asplund has been satisfied, the Court will not necessarily agree to a variation unless the variation is also in the best interests of the child.
Applications to vary existing Orders are extremely complex matters. If you are considering making an application of this nature, it is important that you obtain legal advice prior to making the application.
If you would like more information arising out of anything in this article, please contact Alina Rylko or Robert Sykes today.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
Alina Rylko co-authored this article while she was under the employ of Bennett & Philp Lawyers.