How to change your parenting orders

8-December-2013 Family Law By admin

Are your Family Law Court orders no longer relevant? Do you wish to change them? With changing circumstances, orders that have been made by the Court may no longer be practical or be in the best interests of the affected children. So it is possible to vary parenting orders after a final hearing, but the factors must be significant for the application to vary orders to succeed.

The Court has found that it is not in the best interests of the children for parties to constantly re-litigate parenting proceedings. So, in order to bring an application to vary orders, it is necessary for there to have been a significant change in circumstances “which will justify such a serious step – some new factor arising or some factor which was not disclosed at the previous hearing which would have been material”.

This test was determined by the case of Rice & Asplund 6 FamLR 570. Once it has been determined that there has been a change in circumstances, consideration needs to be given to whether that change is sufficient to justify embarking on a hearing and what impact it will have on the welfare of the children.

In the case of Rice & Asplund, a court made an order in October 1975 granting custody of the child to the father. The wife successfully applied to vary the order for custody in June 1976, granting custody to the mother. The husband appealed that decision to the Full Court, which held that there were circumstances which could account for a considerable change in the wife’s demeanour. When the original orders were made in October 1975, the wife’s future was fraught with uncertainties, most of which were resolved at the time of appeal. The wife remarried and, in the circumstances of the case, the remarriage was a sufficient reason for reopening the issue of custody, although not necessarily for changing custody. The Full Court held that the decision to change custody depends on all of the relevant factors.

Rice and Asplund and subsequent cases have emphasised that the rule operates to protect the children, whose best interests are not served by repeated applications to vary orders when there are no new circumstances to be brought before the Court. 

If you wish to vary your parenting orders, contact one of the Family Law specialists at Streeterlaw to determine whether you meet the threshold test. Email advice@streeterlaw.com.au or call 8197 0105. 

>> Click here to find out what your obligations are if you have parenting orders.


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