Change of Parenting Orders Family Court of Australia or Federal Circuit Court of Australia

23/06/2016

Watson and Watson experienced Family Lawyers received instructions from Jenny who sought our advice as she wished to change the Parenting Orders that had been made by the Court following a fully contested Hearing in 2012.  The Husband/Father opposed the changes which were sought by Jenny to the Parenting Orders.

The Family Court of Australia and the Federal Circuit Court of Australia have power to make Parenting Orders including changes to previously made Parenting Orders. 

Parenting Orders are made by the Courts (either Federal Circuit Court or Family Court) after hearing the disputes or if the parents agree to Orders those Orders can be made by way of Consent Orders.

From time to time, situations arise which require a variation or changes to Parenting Orders.  Often one parent thinks that changes to the parenting arrangements need to be made and should be made.

In some circumstances both parents agree to changes in the Parenting Orders.  However in most cases one or other parent will not agree to the exact terms of changes that may be made to the original Parenting Orders.   The making of changes to or varying Parenting Orders is not automatic and is not always easy to achieve if both parents do not consent to the changes or variations.   

In circumstances where Final Orders have been made in relation to parenting matters, the Courts (either the Federal Circuit Court or the Family Court) are reluctant to make changes or variations to those previous Orders. 

The Courts like to ensure that Final Orders stay final. 

The Court does not want the children (or parents) to be the subject of continuous litigation and does not want the Court system to be flooded with continuous applications by parents to change or vary Parenting Orders either in major or in some cases, minor ways.

The Family Court of Australia has considered the circumstances in which a Court will allow change or variation to a Parenting Order for example in the case of Rice v Asplund.

The circumstances in which the Court (either the Federal Circuit Court or the Family) will allow a change or variation are:

  1. The past circumstances, including the reasons for the decision and the evidence upon which it was based.
  2. Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
  3. If there is such a likelihood, the nature of the likely changes made be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation. 
  4. Plainly a circumstance can only constitute a relevant “change” if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original Parenting Orders were made. 

In the case of Jenny which was before the Federal Circuit of Australia, the Court approached the matter from the point of view of what is in the best interest of the child.  The Federal Circuit Court said and confirmed the desirability of maintaining Final Orders was important.  The Federal Circuit Court only allowed Jenny to continue her Application for variation of the Parenting Orders on a limited basis and issue.  In other words the Federal Circuit did not agree to a complete review of the Final Orders that had previously been made.  The Court only allowed an Application in relation to the critical aspect that required consideration. 

The lesson to be learnt is that when considering what are appropriate Orders, serious consideration needs to be had to the words of the Orders.  This is important whether the Orders are Consent Orders (by the Consent of the Mother and Father of the Children) or Orders that are made by the Court (either the Federal Circuit Court or Family Court) after a contested Hearing.  Often there is not enough care taken even by experienced Family Lawyers as to the wording required for the Orders to be effective.  At Watson and Watson we understand that the Orders in particular Final Orders will operate for a considerable period of time until the Children are 18.  There are many changes to the Children’s lives and the requirements of the Mother, the Father and the Children during this period.  One should not assume (as often happens when Orders are drafted) that the Children will be the same age, same circumstances throughout the whole of the period until they are 18.  Consideration must be given the possible and probable changes in circumstances during this period.   The experienced team at Watson and Watson properly consider all the circumstances and appropriate Orders for the current circumstances and possible changes.

If you have a query as to what is an appropriate Order please contact Richard Watson or his Personal Assistant Shereen Da Gloria to discuss the matter.

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