Parenting Orders – Have They Outlived Their Usefulness? Can I Change Final Parenting Orders?

26/06/2018

Applications can be made for Parenting Orders or to vary Parenting Orders that have already been made by the Family Court of Australia or Federal Circuit Court of Australia by Consent or following a Hearing.

Who can apply for parenting orders?

A parenting order in relation to a child may be applied for by:

(a)       Either or both of the child’s parents; or

(b)       The child; or

(c)       A grandparent of the child; or

(d)      Any other person concerned with the care, welfare and development of the child.

What do I have to do before I can apply for a Parenting Order?

Before exercising jurisdiction under the Family Law Act 1975 and pursuant to Section 601 of the Family Act 1975 an Application for Parenting Orders in relation to a child cannot be heard unless the Applicant (the person seeking the order) files in the Court, a Certificate which is provided to the Applicant by a Family Dispute Resolution Practitioner.  That Certificate must be filed with the Application for a Parenting Order.  There are some exceptions to the requirement for the filing of a Section 60I Certificate.  Those exceptions include:

  • Circumstances where there would be a risk of abuse of the child if there was a delay in applying;
  • There is a risk of family violence by one of the parties to proceedings;
  • That the Application is made in relation to a particular issue;
  • The Application is made in relation to a contravention of the Order by a person;
  • The Court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows serious disregard for his/her obligations under the Order;
  • The Application is made in circumstances of urgency;  
  • One or more of the parties to the proceedings is unable to participate effectively in family dispute resolution;
  • Other circumstances specified in the regulations are satisfied.

Final Orders and Interim Orders

Final Orders are orders that conclude proceedings and do not envisage any further Applications being made to the Court.  These can be Consent Orders made by the Court or they can be Orders made by the Court after a Hearing.

Interim Orders are orders that are made by the Court during the course of proceedings before the Court to regulate parenting matters pending final Hearing or final agreement resulting in Consent Orders.

Can I vary Final Orders? - Yes

An Application for variation of the Final Orders can be made by both or either party who asks the Court to vary the Orders by Consent.

The Application can be made by one party where the other party opposes the variation.  What happens if it is said that Final Orders have been made and things should not be changed – the case of Rice and Asplund sets out the matters for consideration by the Court.

When will a Court re-open Final Orders?

The Decision of Rice v Asplund

In the 1979 case of Rice and Asplund the Court said that (the Court):

“..should not likely entertain an application (for variation of Orders) as to do so would be to invite endless litigation for change is an ever present factor in human affairs…there must be evidence of a significant change of circumstances.”

In other words, the Courts will not allow parents to return to Court to regurgitate issues that have been resolved and settled unless the Applicant party can demonstrate that there is a new issue or circumstance not contemplated by the existing Orders.

If you are contemplating seeking a change to current Parenting Orders whether Interim or Final Orders due to an unforseen shift in circumstances, please contact Richard Watson Senior Family Law Solicitor or Shereen Da Gloria his assistant to discuss your concerns and the options available to you to achieve a sustainable outcome that is beneficial to all parties.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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