Be careful when entering a long-term parenting orders agreement

24-December-2013 Family Law By Simone Green

This case in 2013 involved the decision of the mother of a nine-year-old child to apply to change parenting orders made by consent in 2008, when the child was four.

The father applied to the Full Court of Appeal to dismiss the application of the mother to set aside the 2008 orders, relying on what is commonly called the principle in Rice & Asplund, which states you cannot bring a case back before the court on the same issues without there having been a significant change in circumstances. The rule applies to orders arrived at by consent between the parties as well as those made by a judge after a hearing. The rule is intended to prevent ongoing litigation between the parents, which can have detrimental effects on the wellbeing of affected children in many ways.

In this case, the father contended the mother’s application could not be considered as she had disobeyed the obligation placed on her by the 2008 orders to live with the child in Sydney and she could not then rely on the consequences of such disobedience to have the Court change the orders due to the difficulties she now found with them.

While it is difficult to see too far into the future when a couple initial separates, agreeing to parenting orders means making a long-term commitment to live by those orders.

The Full Court held that there is not a general principle of application in parenting cases to that effect; and that with all parenting cases, it is the Court’s task to take steps with the child’s best interests as the paramount consideration. It follows then that when evidence is presented to the Court demonstrating that a child is not coping with the current orders and one or the other parent seeks orders addressing that, even if the parent created those circumstances and is in breach of the orders, it can only be seen as in the child’s best interest to solve that issue and allow the application to proceed.

At the time of separation, the parties both lived in the Eastern Suburbs of Sydney. Two-and-a-half years later, the mother moved away with the child south of Sydney and the father initiated proceedings to have the child returned to live in the Eastern Suburbs. Those proceedings were settled by the consent orders in 2008, which required the child to live part of the week with the mother and part of the week with the father and enrol in school in the Eastern Suburbs. The mother complied by maintaining two different houses; one in the Eastern Suburbs and one in the south, which in essence required the child to move between three different homes per week.

Both of the parents eventually re-partnered and had children of their new relationships. The mother’s new husband worked in the south of Sydney and they had purchased a home there together. The financial pressure required the mother to relinquish her rental home in the Eastern Suburbs. The mother then filed an application seeking orders that the child live with her in the south and spend time with the father each alternate weekend and holidays. Evidence was presented that the current living arrangements created stress for the child and also to the baby of the mother and her new husband.

The father then made an application to have the mother’s application dismissed. His application was dismissed by the trial judge and he then appealed to the Full Court.

The appeal was dismissed by the Full Court. The Full Court considered carefully the reasons of the trial judge, particularly the weight he had placed on the fact that at the time the 2008 orders were made, the child had not yet started school and the child was in a position which was unfavourable to her welfare and the mother had not yet commenced a de-facto relationship with the man that would later become her husband. The Full Court agreed that circumstances had changed substantially and that the mother’s application could proceed.

Streeterlaw’s Family Law Accredited Specialist Simone Green said great care needs to be taken when entering into long-term parenting orders for very young children, particularly orders entered into by consent as the legal process to change these orders can be a very challenging and stressful process.

“While it is difficult to see too far into the future when a couple initial separates, agreeing to parenting orders means making a long-term commitment to live by those orders. Yes, they can be changed, but it can be a very stressful experience, so it’s important to make some prudent arrangements initially and consult an expert in Family Law before agreeing to a parenting order,” she said.

To get advice on parenting orders or any other matter of Family Law, please contact the experts at Streeterlaw by emailing advice@streeterlaw.com.au or calling 02 8488 9647.

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