Application to Vary Consent Orders in the Family Court

You signed the consent orders, a registrar sealed them, and you filed the paperwork away. Two years on, those orders do not match the life you are actually living. Someone has moved. Someone’s income has changed. Or your ex has quietly stopped doing what the orders say.

So can you change them? Yes, you can. How you do it comes down to one question: does your ex agree?

If you both agree, it is straightforward. You file a fresh application and the court makes new consent orders. If you do not agree, you cannot simply ask the court for a do-over. You have to clear a threshold first, and for final parenting orders that threshold is a significant change in circumstances.

One distinction to get straight early, because it decides everything that follows. Parenting orders and property orders are not changed under the same test. Mixing the two up is one of the most common reasons people start down the wrong path.

Can you change consent orders after they are made?

Yes, but there are two separate routes and only one of them will apply to you.

If you both agree. You file a fresh Application for Consent Orders (Form 11) with the Federal Circuit and Family Court of Australia, setting out the new orders you want. There is no hearing and no argument about whether your circumstances have changed enough. The court’s own guidance on applying for consent orders walks through the filing requirements.

If your ex does not agree. Form 11 is not the instrument for this, and that is where a lot of people get stuck. A contested variation is a court application, filed by Initiating Application, and it has to get past a threshold before the court will look at the orders again.

There is a third thing people try, and it is worth naming. You can agree between yourselves to just do things differently, and plenty of separated parents do that for years without a problem. A purely informal side-arrangement is not the order, though. If it breaks down, the sealed orders are the ones on the file. A written parenting plan, signed and dated by both parents, is a different instrument again, and it does something most people do not expect. A parenting order is treated as including a term that says the order is subject to any parenting plan the parents enter into later. So a plan the two of you sign next year can change how the order operates, without either of you going back to court.

There is one exception, and the court has to have put it there. In exceptional circumstances the court can write into the order that it may only be changed by a further court order. The Act names two situations in particular: where a child needs protection from abuse, neglect or family violence, and where there is substantial evidence one parent is likely to use coercion or duress to get the other to sign a plan.

Parenting orders being subject to later parenting plans, and the exceptional-circumstances carve-out, sit in s 64D of the Family Law Act 1975.

A parenting plan is not enforceable in the way an order is, though. If you want the new arrangement enforceable, put it back through the court as fresh consent orders.

If you both agree: filing a fresh application

This is the simpler path, so take it where you can. You are asking a registrar to approve new consent orders you have already settled between you, not arguing a case.

While you are rewriting the orders, fix the gaps that caused the trouble in the first place. In my experience the disputes that come back are almost never about the ordinary week-to-week routine. They are about the infrequent stuff: overseas travel with the kids, an interstate holiday, the passport application, or who has them at Christmas or on a birthday. If those were not covered the first time, cover them now.

The significant change test: Rice & Asplund and section 65DAAA

If you want a court to change final parenting orders and your ex is opposed, there is a gate you have to get through before the court will even reconsider the orders.

The court must be satisfied of two things: that there has been a significant change of circumstances since the orders were made, and that it is in the child’s best interests to reconsider them. That rule came from the case of Rice & Asplund (1979) FLC 90-725, and the reconsideration test now sits in the Family Law Act itself.

The reconsideration test sits in s 65DAAA of the Family Law Act 1975. The rule it reflects comes from Rice & Asplund (1979) FLC 90-725.

The reason the bar exists is stability. The court’s concern is that a child’s arrangements are not reopened every time a parent is unhappy with them. So it is not asking whether the orders could be improved. It is asking whether something has genuinely shifted since they were made.

Get this wrong and you can spend months on an application that never reaches the merits. The same threshold applies to final parenting orders however they were made, and we go through it in more detail in our guide to changing family court orders.

What counts as a significant change in circumstances?

There is no checklist, and nothing below is an automatic pass. Each is an example of a change that may clear the threshold, always tested against the child’s best interests.

• The child’s needs have changed. School, health, or day-to-day needs that have moved on since the orders were written, particularly as children get older.
• A parent’s financial situation has changed. A job loss, a significant change in income, or a change in what a parent can realistically fund or attend.
• Relocation. One parent moving far enough that the existing schedule cannot physically work.
• A new relationship or remarriage. Relevant where it changes the household the child spends time in, not simply because it happened.
• Other significant life events. Illness, incapacity, a new safety concern, or a sustained pattern of the orders being ignored.

The objection I hear most often, usually in the first ten minutes of a call, is this one: my ex is being difficult and the orders are unfair, surely that is enough. It is not. Frustration with the other parent, a single bad handover, or a child saying they would rather live at the other house does not, on its own, get you through the gate. The court is looking for a change in the picture the original orders were built on.

Mediation first: family dispute resolution and the section 60I certificate

Before you can file a contested parenting application, you generally have to attempt family dispute resolution and be issued with a section 60I certificate. That certificate is the document the court wants to see, and you file it with your application.

There are standard exemptions. Family dispute resolution is not required first where there is family violence or child abuse, where the matter is urgent, where a party is unable to participate effectively, or where the orders were made in the last 12 months and have been contravened in a way that shows serious disregard for them. Each of those is tightly defined, so do not assume you sit inside one without checking.

Family dispute resolution and the section 60I certificate sit in the Family Law Act 1975. The court sets out the process for changing parenting arrangements.

Treat mediation as a real attempt rather than a box to tick. If it works, you are back in the agreement pathway, which is faster, cheaper and entirely within your control.

Changing property or financial orders is different

Property and financial consent orders do not run on “significant change”. The main grounds for setting them aside are a miscarriage of justice by reason of something like fraud, duress, suppression of evidence or false evidence; a default in carrying out an obligation under the orders that has made them impracticable to carry out; and exceptional circumstances relating to the care of a child that would cause hardship if the orders stood.

The set-aside grounds for property and financial orders sit in s 79A of the Family Law Act 1975.

That is a deliberately narrow door. A property settlement that turned out badly is not, by itself, a reason to reopen it. What does come up is disclosure. If either of you later says you did not know what an asset was truly worth when the orders were made, that can turn into a real dispute, and in some cases it is what gets the orders set aside.

If your situation is financial rather than parenting, start with our property settlement page.

What the application needs, and the evidence behind it

Which document you file depends on the path you are on. By agreement, it is an Application for Consent Orders (Form 11). Contested, it is an Initiating Application seeking the variation you want.

Either way, the orders have to be capable of being carried out by two people who may not be speaking to each other.

One of the biggest mistakes we see is when people try to keep things short and vague. So as an example: the property will be sold and proceeds divided equally. That sounds simple, right? But what if one party refuses to sell? What if there’s a dispute over timing or costs?

Spell it out. Who lists the property, with which agent, by when, who covers the costs, and what happens if the first price does not get a buyer. The same discipline applies to parenting orders: dates, times, locations, and who does the driving.

On evidence, a variation application usually needs some combination of:

• Financial documents. Payslips, tax returns, bank statements, valuations, and superannuation statements where money is in issue.
• Affidavits. Your own sworn account of what has changed, and statements from anyone else who saw it.
• Expert reports. Medical, psychological, or valuation reports where the change you are relying on needs professional evidence behind it.

What happens at court

If your application is contested, the court deals with the threshold question first. For final parenting orders that means the significant-change and best-interests questions above. Only if you get through does the court look again at what the orders should say.

At that second stage, the decision turns on the best interests of the child, assessed against the factors the Family Law Act 1975 sets out in s 60CC.

For property and financial orders, the court does not run the best-interests assessment it applies to children’s arrangements. The question is whether one of the set-aside grounds in the Family Law Act is made out. If none is, the orders stand.

Where to from here

Plenty of people who call us have already worked out that the orders are not working. What they do not know is which door they are standing in front of, and whether their change is the kind a court would take seriously.

That is a short conversation, and it is worth having before you file anything. Me and my team can tell you honestly whether your change is likely to clear the threshold, or whether your energy is better spent getting your ex to agree.

Book a free discovery call on 1300 614 732 or send us a message, and we will tell you where you stand and what your next step is.