In the sad event of a couple with children separating or divorcing, making arrangements for the care, welfare and upbringing of the children both in the short and long term is the most important immediate task facing both parties.
In family law matters in Australia, the welfare and best interests of the child are paramount considerations, both when parents come to a mutual agreement about the raising of children or when courts make parenting orders to resolve a dispute about the issue. These orders can cover a range of issues, including where the child will live, schedules for visiting each parent, means of communication between parents and children, and decision-making responsibilities regarding the child’s upbringing such as education and health.
Once parenting orders are in place, however, situations may arise where one or both parents later seeks to vary the orders. Common reasons for seeking variations include changes in parents’ work schedules, the desire of one parent to relocate, remarriage, the child’s developmental needs, or concerns about the child’s safety and well-being.
Varying parenting orders can lead to complex legal proceedings and requires the advice and guidance of experienced family law practitioners. In this article we’ll provide some more detail on the circumstances in which the court will agree to varying parenting orders.
What’s required to vary parenting orders?
Family law cases to decide parenting orders can be stressful, both for the parents and the children involved. For this reason, courts are reluctant to further change parenting orders to minimise the impact on children.
As such, the party making an application must demonstrate to the court that there has been a significant change in circumstances warranting a review of the existing orders. The court will consider whether the proposed changes are in the best interests of the child and whether they align with the child’s welfare and developmental needs.
These principles were clearly expressed in the case of Rice v Asplund (1979), which set a threshold test for whether parenting orders can be changed or not. In Rice v Asplund the court ruled that it would only agree to review and vary final parenting orders if it was satisfied that there had been a significant change in circumstances since the order was made, or some material factor not disclosed at the earlier heading, which would justify such a serious step.
The rationale behind the rule in Rice v Asplund is to prevent constant litigation and upheaval in the lives of children by discouraging parents from repeatedly seeking variations to parenting orders based on minor or temporary changes in circumstances. Instead, the rule encourages finality and stability in parenting arrangements while prioritising the child’s welfare and minimizing disruption to their lives.
Application of the rule – examples of ‘a significant change in circumstances’
Courts may consider a range of factors in determining whether parenting orders should be varied, such as the age and maturity of the child, the nature of the proposed changes, the reasons for seeking variations, and the impact of the changes on the child’s well-being and relationships with both parents.
Examples of a significant change of circumstances after the original orders include:
- Where one parent seeks to relocate with the children;
- where both parents agree on new parenting arrangements, rendering the existing orders out-of-date and irrelevant to how the children are currently raised and cared for;
- where one or both parents has remarried or gained a new partner;
- where family abuse or domestic violence has been perpetrated against the children;
- where a parent or a child has a serious health issue;
- where a substantial period of time has elapsed between the final orders being made and the application to vary is made;
- where the existing orders were made without all the relevant information being before the court.
Courts may also consider the child’s views and preferences, particularly if the child is mature enough to express their wishes regarding parenting arrangements and their views on the current parenting orders. Situations where a parent has more – or less – time to spend with their children may also be a relevant factor, as is increasing conflict between parents which make the current orders unworkable.
The onus is on the applicant to vary the parenting orders to demonstrate the necessary significant change in circumstances. The paramount consideration remains the child’s best interests, and courts will weigh all relevant factors to determine the most suitable arrangements.
Uncertain? Discuss your case with our family law experts
Parenting orders provide stability and certainty both for parents and children once a family breaks up. But over time, circumstances can change as one or both parents enter into new relationships or change jobs, and children grow and evolve their views of the world. Varying parenting orders may become necessary but there are legal hurdles to navigate in doing so. Expert family law advice from the team at PD Law is essential in helping clarify the issues involved and taking the right steps towards securing parenting orders that reflect a family’s actual situation.
