Once Orders are made, either by the Court or the consent of the parties, in relation to the care and living arrangements for children, they are final. Orders made only be varied if either both parties’ consent, or the Court determines that it is appropriate to change the Orders.
Changing Orders by Consent
If a party is seeking to change Parenting Orders, it is always beneficial to try and negotiate the changes sought. Resolution of matters through litigation can take between 12 and 18 months and cost anywhere between $20,000 and $200,000. By engaging in negotiations parties are often able to achieve an agreement in less time and without incurring significant legal fees. In many cases by reaching agreement through negotiations, it also enables the parties to maintain a less acrimonious relationship, than they may otherwise have following litigation, which in the long term only benefits the children.
If parties are able to reach agreement to vary Court Orders, it is possible to do so by entering into Consent Orders which discharge the previous Orders and set out the arrangements for the children moving forward.
Changing Orders where parties cannot agree
In circumstances where parties do not agree to change Court Orders, an application must be made to the Court.
In order to set aside final parenting Orders, parties must meet the “threshold” test set out in Rice v Asplund (1979). This case provides that where final Orders have been made, the party seeking to change the Orders must demonstrate that there has been a significant change in circumstances since the Orders were made.
A significant change in circumstances is not defined within the Family Law Act and the Court has wide jurisdiction when considering whether an application meets the threshold test. The category of circumstances which are sufficient to justify a significant change in circumstance are not closed, nor are they applied universally to every matter. The factors raised by a party in support of their application will be considered in the circumstances of the case rather than as an isolated fact or checklist.
Examples of matters which may be considered to give rise to a significant change in circumstances include:
- One party cannot reasonably comply with the Orders;
- One party repeatedly failing to comply with the Orders without a reasonable excuse;
- The Orders no longer reflect the arrangements that are or have been in place for the children.
- A party seeking to relocate;
- New relationships of the parties;
- Change to the children’s wishes;
- Change to the health of a child/party.
If a Court is satisfied that there has been a significant change in circumstances since the making of the Orders, the Court will then determine whether the Orders should be changed and if so, what Orders should be made for the care of the children. When determining an application, the Court’s paramount consideration is the best interest of the children.
The Family Law Team at McLachlan Thorpe are experienced in assisting clients to negotiate arrangements in relation to children and formalising those agreements by way of Consent orders as well as providing assistance in legal proceedings if parties are unable to achieve agreement through negotiation.
If you are seeking to vary your parenting Orders, or have been contacted by your former partner in relation to the same, please contact the Family Law Team.
