How can I change Final Parenting Orders?

When the Court makes orders at a final hearing, or by consent of the parties with the view of finalizing the matter, the intention is to finalize all matters concerning the children until the children reach the age of 18. However, it is sometimes necessary for final orders to be revisited prior to the children reaching the age of 18 in order for such orders to meet with the children’s best interests.

Commencing 6 May 2024, the Family Law Act 1975 will be amended to insert a new section 65DAAA into the Act; this new section outlines the factors which the court must take into consideration when revising final orders. 

Parties are still required to comply with pre-action procedures before commencing proceedings to vary a final parenting order.

What does section 65DAAA say and what was the Rice and Asplund Rule?

Section 65DAAA codifies the common law rule in Rice v Asplund (1979). This rule provides that where there are final parenting orders in place, the party applying for a change in the orders must first establish that there has been a significant change of circumstances since the making of the orders before those orders can be changed. The premise behind this rule lays in the notion that continuous litigation over children is generally not in their best interests.

Section 65DAAA now makes this rule part of the Family Law Act 1975, providing that the Court cannot revisit a parenting order unless significant change of circumstances has been established and further, that it is in the best interests of the child for the order to be reconsidered. The second part of 65DAAA adds a second limb to the current test in Rice v Asplund.

In considering the best interests of the child or children, the Court can have regard to a range of matters:

• The circumstances in which final orders were made, and why they were made;
• Any new evidence available that was not available at the time the final parenting order was made;
• Whether, if the final parenting order is reconsidered, the Court would now make an order in significantly different terms;
• The potential benefit or detriment to the child in reconsidering the orders.
  

What constitutes a significant change in circumstances?

Circumstances in which a significant change in circumstance may arise include but are not limited to:

• A decision by one of the parties to relocate 
• A deterioration in the mental/physical health or wellbeing of one of the parents or children such that the orders cannot be complied with
• The views of a child in circumstances where time has elapsed since the making of the final Orders; and 
• A decision by one of the parents to re-partner, where such partner poses a risk of harm to the children spending time with their parent in the presence of such partner
• Mental health relapse/ drug relapse of a parent which was not contemplated in the orders
  

If the Court finds it is not in the best interests of the child or children to vary the final parenting order, the order will not be varied ─ even if a significant change in circumstances is established. 

What happens if we agree that final orders need to be changed?

The amendments provide that parents are still able to agree between themselves to vary a final parenting order. An application can be made to the court to vary the orders by consent. 

The Court does not entertain applications to amend or set aside an earlier parenting Order lightly. If you are considering such an application it is important that you obtain family law advice. Contact Hillcrest Family Lawyers via mobile, text or email at tamara@hillcrestlaw.com.au to book an appointment with Tamara for tailored legal advice on your matter. 

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