Reconsideration of Final Parenting Orders
When the Federal Circuit and Family Court of Australia makes Final Parenting Orders, such Orders will generally remain in force until the child turns 18. Whether the Orders arise out of a consent position agreed upon by the parties, or whether the Orders are made after the hearing of a case by a judge, such Orders will be final and binding.
Should a party wish to vary existing final parenting orders, they must bring an initiating application before the court setting out the variation sought. However, the Court will only consider an application to vary final parenting Orders if section 65DAAA of the Family Law Act is satisfied.
How does the Court determine whether to accept an application to vary Final Parenting Orders
In accordance with section 65DAAA of the legislation, the Court must be satisfied that:
- There has been a significant change in circumstances since the final parenting order was made.
- That, all factors considered, it is in the child’s best interests for the Court to reconsider the parenting Orders.
The Court will apply the ‘bests interests’ of the child test set out in section 60CC of the legislation, and will also consider:
- The reasons for the final parenting order the material on which it was based.
- Whether there is any new material available which was not available at the time the final parenting order was made.
- Any potential benefit or detriment to the resulting from the reconsideration of the final parenting order.
What is a significant change of circumstances?
In deciding whether there has been a significant change of circumstances, the court will consider the changes in circumstances together with the facts of the matter.
Examples of these ‘significant changes’ are as follows:
- A party is seeking to relocate with the children;
- The current orders were made without all the relevant information being before the court;
- The parties have since consented to new parenting arrangements (e.g. entered into a parenting plan) and therefore, the current orders are no longer reflective of the actual arrangements for the children;
- 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;
- There has been abuse of the children;
- A party to the proceedings or the child is in ill-health.
What does this mean for parties seeking a variation to Final Parenting Orders?
A person intending to apply for a variation to final Parenting Orders must first consider how the Court would approach the application and whether the legislative requirement would likely be satisfied. They should also attempt to resolve the situation through Family Dispute Resolution Conferencing prior to filing an Initiating Application. The court requires parties to have attempted Family Dispute Resolution conferencing prior to accepting an Application, except, where there are exceptional circumstances.
It is important to note that the court is reluctant to vary final Parenting Orders. Even if there has been a significant change in circumstances and the rule in section 65DAAA is satisfied.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
