CAN I CHANGE FINAL PARENTING ORDERS?
You thought you had solved everything when you agreed to the Final Parenting Orders but now, they are just not working because everyone has moved, or your child has been diagnosed with a serious illness, or one parent has recovered from an addiction.
Can you go back to Court and change the orders to fit into your life now?
MAYBE
The Courts are reluctant to change Final Orders as central to all decisions is the need to foster children’s wellbeing and to help build a secure and settled environment over so much change and upheaval after their parents’ separation.
Hence, there needs to be really significant change for the Courts to even look at an application to interfere with Final Orders.
Even if the Courts accept that there has been a significant change in the circumstances of the parties, they still may not alter the Final Orders.
S65DAAA
Changes to the Family Law Act 1975 (Cth) (the Act) in May 2024 introduced new rules for how the court will reconsider final parenting orders.
Additionally, Case Law has been evolving since then and the case of Radecki & Radecki [2024] FedCFamC1A 246 has provided a pathway for lawyers when approaching the Courts to make an application for change.
The Historic “Rice & Asplund” Approach
Before 2024, lawyers followed the principles as set out in the case of In the Marriage of Rice and Asplund (1978) 6 Fam LR 570 which set out the test that questioned:
- Whether there had been a significant change in circumstances of the parents or the child/children since the making of the final parenting orders; and
- Whether even with the change, the final parenting orders remained in the best interests of the child/or children in light of the undesirability of exposing a child to multiple court proceedings, especially given the proceedings that led to the final orders.
S65DAAA and Radecki
The changes to the Act has codified the Rice & Asplund principles which the case of Radecki clearly endorses.
S65DAAA of the Act provides that the court must NOT reconsider changing final parenting orders unless:
- There has been a significant change in circumstances since the final parenting orders were made;
- In all the circumstances, it is in the best interests of the child or children to reconsider the final parenting orders
Then, the Act identifies the factors the court should consider when determining whether to reconsider final parenting orders even if there has been a significant change in circumstances, including:
- The best interests of the child;
- The reasons behind the final parenting orders and any material on which the orders were based;
- Whether there is any material now available which was not available to the Court when the final parenting orders were made; and
- The likelihood that the courts will make new parenting orders
- Always, with the potential benefit or detriment in mind to the child that may result from reconsideration of the final parenting orders.
WHAT DOES ALL THIS MEAN TO YOU AS PARENTS?
By way of example, just because a child is older and now wants to go to soccer training when they are with one parent who wants to go swimming, will not be a sufficient change.
When the Courts make parenting orders for 6-year-old children, they take into account the gradual progression and changes that will inevitably happen as the child grows to 18 years old.
However, some changes that have been considered in case law include:
- Relocation of a Parent or Child
A relocation may affect the child’s living arrangements or makes it harder for the child to spend time with a parent.
- Abuse or Family Violence
When there is family violence which puts the child at risk, the Courts will intervene.
- Orders that are unworkable
Timetabling of schooling or location of activities may make it impossible to follow the orders.
- Improved circumstances
A parent may have found settled accommodation or a secure job allowing a secure environment for the child to spend time.
- Re-partnering or Remarriage
A parent may have settled into a secure partnership giving the child a secure environment.
- Child’s Wishes or Maturity
The child’s maturity may mean that their wishes will be considered in determining what is in their best interests.
- Health Changes
A parent’s health may have improved, or a parent may have overcome an addiction allowing the child to safely spend time with them. Alternately, a child may be diagnosed with a serious illness needing treatment at times and locations that make the orders unworkable.
- Breaches of Orders
If one parent continually, repeatedly and without a reasonable excuse, breaches the orders: not bringing a child back on time, extending holidays during the other parent’s time, deliberately denigrating a parent in the presence of the child, not giving notice of changed school activities, anything that does not comply with the current orders, you may bring the matter back to Court.
NOTHING IS GUARANTEED
If you think that you have a case because of the change in your situation or that of your child or children, it is important that you seek legal advice.
As can be seen, even with a change of circumstances, you are not guaranteed a change in the orders.
Each parent must carefully consider the impact of any change on the child or children. The Court will always have first in mind, the best interests of the children and encourage parents to avoid relitigating and subjecting the children to the parental conflict.
We can guide you through the pros and cons and advise the best way forward for you and whether there is merit in applying to the Court.
Please call us now so that we can help you move forward.
This article is for information purposes only and should not be relied on for legal advice.
