Variation of Parenting Orders

Monday, April 27, 2015

So, you have obtained formal Parenting Orders (“Orders“) but you want to make a change to them.  Easy right?  Not so fast.

Orders are essentially a structured arrangement outlining the manner in which children shall live and spend time with their parents.  Orders can be made by consent or they can be imposed by the Court.  Orders can be varied with the consent of both parties. 

If parents agree to vary their existing Orders, they may:

Enter into a Parenting Plan

In order to be recognised, a Parenting Plan must be written, signed and dated by both parents.  It does not need to be filed in Court and it does not require the parents to obtain independent legal advice.  If the Parenting Plan contradicts the existing Orders it will override them to the extent of any inconsistencies. 

In other words, the particular Orders which are not interfered with by the Parenting Plan will continue to be binding upon the parents.

A Parenting Plan is non-binding.  This means that if a parent chooses not to follow the terms of the Parenting Plan there are no legal ramifications for them.

Make an Application to Court seeking to vary the existing Orders

Parents who seek to vary their existing Orders by consent may choose to formalise the amendments being made by making an Application to Court requesting that new Orders issue which encompass the changes.  

Changing Orders in this manner can only be done with the consent of both parents.  Once further Parenting Orders issue they will be binding upon the parents.  Amending Parenting Orders by consent is relatively straightforward. 

The difficulty arises when one parent seeks to vary the existing Orders and the other parent refuses to do so.  If this occurs, both parents must continue to comply with the existing Orders until further Orders are made.  Non-compliance with Orders can result in a variety of different legal consequences. 

The parent seeking to change the Orders will be required to follow the process as outlined below:

  1. In the vast majority of cases, the parent seeking the amendment to the Parenting Order will be required to invite the other parent to a Family Dispute Resolution Conference (“FDRC”) so as to genuinely attempt to resolve the matter by consent.
  2. If the issue is not resolved by the parties at the FDRC, the parent seeking to amend the Orders will be required to make an Application to the Court.
  3. Before the Court can accept a parent’s Application to vary Orders they must find that there has been a significant change in circumstances which warrants the reopening of the matter. If the parent seeking to change the Orders cannot demonstrate that there has been a significant change in circumstances, the Court can dismiss the Application.

Circumstances where the Court has considered there to have been a significant change in circumstances have included when an Order has become entirely unworkable, where the Orders no longer reflect the actual arrangements for the child, where a parent has relocated, where a parent has lost their job, when a parent has remarried, when children have expressed a wish to spend time with or live with a different parent. 

The Court can also reconsider existing Orders in circumstances where a relevant and material factor was not disclosed to the Court when the existing Orders were made.  Each case will turn on its own facts.  The Court will consider and assess the facts of each case when determining whether a significant change in circumstances has occurred.  

As with all Orders, the Court will consider the child’s best interests as paramount when determining whether to vary an existing Order.  The Court can also consider varying existing Orders in circumstances where a parent has breached the current Orders. 

This kind of variation occurs via a different process than that outlined above and requires the non-breaching parent to make a different kind of Application to the Court that is, a Contravention Application. 

If you are considering varying an existing Order you should seek legal advice so as to determine your prospects of success.

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