Final parenting orders in Australia are made either by consent or following litigation in the Federal Circuit and Family Court of Australia (‘Family Court’). These orders are designed to remain in place until the child or children reach the age of 18. However, circumstances can change over time, and many clients approach us seeking to vary final parenting orders for a range of reasons including (but not limited to) family violence, concerns for a child’s safety, changes in a parent's employment schedule, one parent’s desire to relocate, or even the wishes of the children themselves.
How to Change Final Parenting Orders if No Agreement Is Reached
If one parent wishes to change final parenting orders and there is no agreement with the other parent, they must file an Application to the Family Court under Section 65DAAA of the Family Law Act 1975 (Cth) (‘the Act’). This section came into force on 6 May 2024.
In accordance with this Section, the Court will not reconsider a final parenting order unless two key criteria are met:
1. Significant Change in Circumstances: The Court must be satisfied that there has been a significant change in circumstances since final orders were made; and
2. Best Interests of the Child: The Court must also determine that, in all the circumstances, it is in the best interests of the child to reconsider the final orders pursuant to Section 60CC of the Act.
What Constitutes a ‘Significant Change in Circumstances’?
When determining whether a significant change in circumstances has occurred, the judicial officer must exercise discretion to determine whether the evidence presented by the applicant constitutes a significant change. This involves carefully weighing the significance of the change against the potential impact on the child if the proceedings are reopened.
In exercising its discretion, the Family Court relies on case law for guidance, including the landmark case of Rice & Asplund. In this case, the Full Court clarified that the mere passage of time or minor changes in circumstances are not sufficient grounds for reopening a parenting matter, rather the onus is on the Applicant to demonstrate that the change is substantial enough to warrant reconsideration.
The process of changing final parenting orders in Australia is not taken lightly, as these orders are intended to provide stability for children.
If you are considering seeking a variation to final parenting orders, contact our office on 8227 1970 and one of our solicitors will provide you with advice.