Changing Family Court Orders
More and more parents are changing family court orders due to a change in the circumstances of their children or themselves.
It is important to note that family court orders can’t just be changed because one parent doesn’t like the way things are working with the order or ‘feels like it’.
If you want to change a family court order, the first thing you should do is speak to the other parent of the child to see if you can come to some agreement or compromise.
If this is not possible, then you will have to attend mediation in order to try and resolve the matter before speaking to lawyers and going to court.
Lastly, if this has not been successful, you may need to consider obtaining legal advice and going to court.
To change a parenting order in a court you have to show the court that there is a need for the orders to change because there has been a significant change in circumstances.
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 make a change necessary.
This is to avoid parents continuously going to court to obtain the orders that they want.
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 of a serious nature to justify a review of Final Orders.
Breach of Existing Orders
The Family Court may also consider changing Orders if an application is filed stating that another party has breached the Orders (this is known as a Contravention Application).
Once a Contravention Application has been filed, the Court has the power to alter the Parenting Order.
It doesn’t matter whether the breach is proven.
The court makes the variation of the Order to protect the best interests of the child named in the Order.
Informal arrangements with other parent
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.
You can have a parenting plan written up into consent orders which are filed with the court and made into court orders which are enforceable.
You need to be careful that your claim isn’t dismissed immediately because the general rule is, once a decision has been made in the courts, it will not be changed.
The Court will need to be satisfied that there has been a material or significant change of circumstances for it to be re-heard in court.
This is quite commonly referred to as the rule in Rice & Asplund.
The court doesn’t want to continue listening to the same issues about the same children time and time again.
However, the Court understands that circumstances in children’s lives will change over time.
We always recommend our clients to attend mediation when trying to resolve a dispute.
This can be difficult if there is resentment or if one party is not cooperating, which may leave you with no option but to make an application to change an existing parenting order.
Find out more
- Denying access to a child in Australia
- Helpful things to know about a Recovery Order
- What are the best interests of the child?
- What is equal shared parental responsibility in Australia?
- Sole Parental Responsibility
- Changing Family Court Orders
- Child Relocation After Divorce
- Can I stop my ex taking my child abroad?
- Grandparents Rights
- Parent refuses to sign a passport application