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Changing Family Court Orders
More and more parents are revising family court orders because of changes in their children’s or their circumstances.
However, it’s essential to understand that court orders can’t be changed simply because one parent is dissatisfied or “feels like it.”
Changing Family Court Orders Without Going to Court
If you want to modify a family court order without going to court, the first step is to talk to the other parent to see if you can reach an agreement or compromise.
If that’s not possible, attending mediation is the next step to try to resolve the matter before involving lawyers and going to court.
Informal Arrangements with Other Parents
You can mediate with the other side and come to an informal arrangement.
This typically means entering into a parenting plan where you both agree to the new conditions for the children.
You should consider getting legal advice before changing a parenting order by a parenting plan because parenting plans are not enforceable.
This means if one parent doesn’t follow the parenting plan the Court can’t do anything about it.
Legal Ways on How to Get a Court Order Changed
If mediation fails, seeking legal advice and potentially going to court might be necessary. To change a parenting order in court, you need to demonstrate that there’s a significant change in circumstances warranting the modification.
Rice and Asplund Threshold Test
If you are considering changing family court orders, it means that you need to show that there has been a significant change in circumstances that makes a change necessary.
This is to avoid parents continuously going to court to obtain the orders that they want.
However, the Court understands that circumstances in children’s lives will change over time.
A formal application to change the orders must be made in court.
In Rice v Asplund decided over 30 years ago, the Family Court said that before it reviewed a Parenting Order, it would need to be satisfied that:
- A substantial change in circumstances had occurred, or
- That important information was not disclosed when the current Orders were made.
A substantial change in circumstances will depend on the facts of each case.
A Significant Change in Circumstances, Family Law
Here is a list of things that a court may consider when deciding whether or not changing Family Court orders is in the best interests of the child:
- The current Orders are entirely unworkable;
- The current Orders no longer reflect the actual arrangements for the child;
- A parent has relocated;
- A parent has lost their job;
- A parent has remarried;
- When children have expressed a wish to spend time with or live with a different parent.
Changing family court orders through a court should be something a parent considers as a last resort. The Court has been careful to point out that change is an ever-present factor in life and needs to be serious to justify a review of Final Orders.
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Can a Court Order Be Changed Without Going to Court?
No, in New South Wales (NSW) you cannot formally change a court order without going to court.
Court orders, once issued, are legally binding and enforceable. However, there are some scenarios and mechanisms through which a court order can be modified or varied:
Consent Orders
Consent Orders
If all parties involved agree to the changes, they can submit a request for a consent order to the court. This does not necessarily require a court hearing if all parties are in agreement, and the changes are reasonable and in line with legal standards.
Administrative Changes
Administrative Changes
For some types of orders, like those dealing with administrative matters or errors (e.g., a typo in a name or a date), it might be possible to request a correction without a formal court hearing.
Mediation or Alternative Dispute Resolution
Mediation or Alternative Dispute Resolution
In some cases, parties might be able to resolve their differences through mediation or another form of alternative dispute resolution. If they reach a new agreement, they can then submit this agreement to the court as a consent order.
Specific Legal Provisions
Specific Legal Provisions
Certain types of court orders, particularly those related to family law or ongoing matters like child support or custody, may have specific legal provisions that allow for modification based on changes in circumstances. However, these modifications typically need to be approved by the court after a motion is filed.
Even if you agree on changes, some paperwork might still be involved and a small fee to file the consent orders.
Significant Change in Circumstances Family Law Australia
Under the Family Law Act, a “significant change in circumstances” is a key factor when considering changes to existing parenting orders. Here’s a breakdown:
Why it Matters:
- After final parenting orders are made, the court generally discourages frequent applications for changes.
- To make changes, you must show a significant change in circumstances and that the change is in the child's best interests.
Examples of Significant Changes:
- Relocation: A parent wanting to move with the child/ren to a new location (within or outside Australia).
- Living Arrangements: Significant changes in a parent's living situation that might impact child access (e.g., new partner, new baby).
- Health Issues: A substantial change in a child's or parent's health that affects their ability to care for the child.
- Abuse: If abuse of a child or parent wasn't considered when the initial order was made, or the situation has worsened.
- Current Orders Unworkable: If the existing parenting orders are simply not functional in practice.
Reasons to Change Parenting Orders
Changing parenting orders in family law is a significant action that typically requires showing that there has been a substantial and material change in circumstances since the last order was made. The primary consideration in modifying these orders is always the best interests of the child. Here are some common reasons that might justify a change in parenting orders:
Change in Living Circumstances
One parent may have moved to a different location, which could significantly impact the logistics of the current custody arrangement or the child’s schooling and social life.
Alteration in Work Circumstances
Changes in a parent’s work schedule, such as shifts that now conflict with the times they are supposed to have the child, could necessitate a reevaluation of the parenting order.
Health Issues
If a parent or the child experiences significant health issues that affect their ability to adhere to the current order, this might require adjustments to the custody or care arrangements.
Safety and Welfare Concerns
If there are new concerns about the child’s safety or welfare under the current arrangement, such as evidence of abuse, neglect, or exposure to domestic violence, this could necessitate immediate changes to the order.
Behavioral Changes in the Child
Significant changes in the child’s behavior or needs might require adjustments in the parenting plan to better support the child’s development and well-being.
Parental Non-compliance
If one parent consistently fails to comply with the terms of the order, such as not adhering to the agreed times for custody or not consulting the other parent on important issues as required, this might lead to a modification of the order.
Improved Relations
Sometimes, changes in the relationship between the parents, such as improved communication and cooperation, might allow for a more flexible or shared arrangement than was previously feasible.
Child’s Preferences
Depending on the child’s age and maturity, their preferences might be considered, especially if they express a strong desire to alter the current living arrangements.
Financial Changes
Significant changes in the financial circumstances of a parent that affect their ability to provide for the child might also necessitate changes to support obligations or other aspects of the parenting order.
When seeking to change parenting orders, it is crucial to document the reasons for the change thoroughly and provide evidence to support the claim that these changes are in the best interests of the child.
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