Parenting Orders – What Happens When You Cannot Comply with the Orders

21/04/2020

Parenting Orders are orders that deal with parental responsibility, where children live and what time they spend with each parent and other significant adults.  Orders are made in relation to changeover, places and time, educational, medical issues, travel and many other specific issues. 

Parenting Orders must be complied with and there are penalties for not complying Parenting Orders.  The capacity to comply with Parenting Orders in circumstances currently being experienced in Australia are creating conditions where it may be difficult, impractical or impossible for a parent to comply with the Order.  

If you are unsure of how to comply with Parenting Orders and the consequences of not complying, Watson & Watson Lawyers are able to provide that advice. 

Can Parenting Orders be Varied

Parenting Orders can be varied to take into account changed circumstances and to ensure that the children’s interests remain paramount.  The Family Court of Australia and Federal Circuit Court of Australia have the powers to vary orders but the Courts will not always vary orders.  In order to successfully make Application to vary orders, there must be material change in circumstances or the Application for variation of Parenting Orders must relate to a particular issue. 

The Family Court of Australia and the Federal Circuit Court of Australia have powers to make Parenting Orders.  Parenting Orders are made by the Courts after hearing defended matters or if the parents agree, after the Courts have made Consent Orders following an agreement between the parents. 

From time to time, situations arise which call for variation or changes to Parenting Orders or where one parent thinks that changes need to be made and should be made in the best interest of the child or children. 

It is not always the case that the other parent will agree to changes.  The making of changes to or variations of Parenting Orders is not automatic and is not always easy to achieve unless both parents consent to the changes or variations.   

Requirement for Change of Circumstances

In circumstances where Final Orders have been made, the Courts are reluctant to make changes or variations to Orders.  The Courts wish to ensure Final Orders stay final.  The Court tries to avoid the children being subject to continuous litigation.  The Courts position also protects the Court system being overwhelmed with continuous applications by parents to change or variations to Orders.  The Family Court of Australia and Federal Circuit Court of Australia have considered the circumstances in which a Court will allow change or variation to a Parenting Order; in the case of Rice v Asplund.

The circumstances in which the Court may allow change or variation are:

1. Whether the relevant “change” 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. 
2. Whether some new factor or issues has arisen since the Orders were made.
3. Whether there is a likelihood of Orders being varied in a significant way, as a result of a new hearing and if there is such a likelihood, then the nature of the likely changes is to be weighed against the detriment to the child that could be caused by the litigation itself.

In the case of Rice v Asplund which was before the Federal Circuit Court of Australia, the mother sought to vary the Final Parenting Orders that had been made in 2012.  The father opposed her application to vary the Orders. 

The Federal Circuit Court of Australia approached the matter from the point of view of what was in the best interest of the child and determined that in all the circumstances, the desirability of maintaining Final Orders was important and would only allow the mother to continue her application for variation on a very limited basis. 

If you are involved in parenting/contact proceedings and have any concerns as to Parenting Orders or are proposing to seek to vary or change current Parenting/contact Orders, our experienced Family Law Solicitors can assist you.  Please do not hesitate to contact Richard Watson Senior Family Law Solicitor or Shereen Da Gloria his Personal Assistant to discuss your concerns and seek timely advice.

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