It is contemplated by the Courts that once final Parenting Orders are made, that the parties will abide by those orders until the subject children turn 18 years of age or the Orders are amended, ideally via agreement from both parties.
But what happens when one party makes a unilateral decision which frustrates the parenting orders such as moving interstate or even a few hours away.
Although it would be the affected parties right to seek that the orders are complied with, this may not be practicable where a changeover could not be executed, as the other party now lives a plane ride away.
How to Amend Parenting Orders
In these circumstances, it would be preferable for the parties to communicate with one another by either negotiation between themselves or attend mediation to agree on new orders which can either be filed with the court or completed by way of a parenting plan which would supersede the existing orders.
If the parties cannot agree, the affected party may need to file with the Court in order to have the orders updated. For the Court to consider the application, the party must show that there has been a significant change of circumstances, otherwise known as a Rice and Asplund argument.
When seeking variations to parenting orders, it is important to keep in mind that when making orders concerning children, that the Court’s paramount consideration is what is in the best interests of the children including the need to protect the children from physical and psychological harm.
This may not necessarily align with what is in the best interest of the parent, however, the Court may consider any hardship for a parent if a change in orders is not made and the impact this hardship may have on the child. One example may be that the current orders may expose a child, parent or other party to an unacceptable risk of family violence.
Rice and Asplund (1979) FLC 90-725
In this case, the Court made Orders placing the child to live with the father. The mother made an application nine months from the original orders to vary the orders made. Orders were then made by the Court, where the child was to live with the mother, the father then appealed, which was later dismissed.
The Court held that an application to overturn an earlier order should not be taken lightly and should be satisfied that the applicant has showed a significant change of circumstance or that there was some new factor which would have been material, but not disclosed at the previous hearing.
What Classifies as a Significant Change of Circumstance?
Relocation
It was held in the case of Searson [2017] FamCACF 119, that the mother’s proposal to move interstate that would subsequently ease the significant financial stress experienced by the mother, noting she was the children’s primary carer, amongst other factors such as the existing consent orders breaking down and considerable difficulties occurring with the orders since they were made a compelling case that there had been substantial changes which warranted the matter to go to hearing seeking variation of orders.
A Parent’s Health
It was held in Shan & Prasad [2020] FamCAFC 189 that the production of two updated psychiatrist reports in regards to the father’s mental health was enough to determine that there was a sufficient change in circumstances to warrant the Court re-hearing the parenting matter.
Other circumstances have been found to include:
- Abuse of the child/ren;
- A substantial period between the new application being made and final orders;
- Ill health of a child or party to the parenting orders;
- One or more of the parties have re-partnered or remarried; and
- The parties have entered into a new agreement by way of a parenting plan, superseding previous parenting orders.
If you have been affected by a party frustrating parenting orders or are seeking to vary existing orders, please contact our firm to make an appointment with one of our family lawyers on (02) 4944 3322.
