An Application to change a parenting order is an uphill battle, which will not lightly be entertained by a Court as to do so would invite endless litigation.
When will a court change a parenting order?
For a court to reverse an earlier parenting order, it must be satisfied that there has been a significant change in circumstances since the order was made or a new factor arising which was not disclosed at the previous hearing, which would have been material to the Judge’s decision.
This principle was determined in the case of Rice & Asplund.
Even if there has been a significant change in circumstances, a change to the orders must be considered by the Court to be in the children’s best interests.
In Marsden & Winch [2009] FamCAFC 152, the Full Court set out a 2 step process for determining whether a parenting application should be reopened:
- That a prima facie case of changed circumstances has been established;
- That there is a sufficient change in circumstances so as to justify embarking on a hearing.
What are some examples of significant changes in circumstances?
There is no defined list as to what constitutes a significant change in circumstances as each case is determined on its own merits.
However, some changed circumstances which may be considered significant by a court, so as to justify changing a parenting order, are:
- A parent who is addicted to drugs getting clean;
- a parent who is an alcoholic, being sober;
- A parent becoming addicted to drugs/alcohol where they were not before;
- A parent developing a mental health issue which affects their capacity as a parent;
- A parent obtaining treatment for their mental health such that their capacity as a parent has improved;
- A parent moving further away from the children such that the current parenting orders are now frustrated;
- A parent moving significantly closer to the children such that the current parenting orders are not appropriate and in the children’s best interests;
- A parent sexually abusing a child;
- A child developing a mental health issue;
- A parent going to jail for a serious charge such that they are no longer able to care for the child and it is not in the child’s best interests to spend time with that parent;
- A parent not spending time with the children in accordance with a court order for a significant period, but then attempts to enforce compliance with that order;
- A parent threatening to harm the children and/or the other parent (usually in conjunction with drug use, anger management and/or mental health issues coming to light);
- A parent’s living circumstances changing in a dramatic way.
- A child being older than when the orders were originally made is expressing very strong views.
The Judge has discretion as to whether to consider the ‘Rice & Asplund’ principle as a preliminary issue (at the first court date) or after a full contested hearing.
Where possible, the Judge will deal with it as a preliminary issue so as to minimise the legal costs of the parties and the impact on the children if the court proceedings were reopened.
Importantly, for the court to assess that any of the above factors constitutes a significant change in circumstances, so as to justify reopening a parenting order, the changed circumstances need to be supported by evidence.
The burden of establishing a prima facie case of changed circumstances at a preliminary hearing so as to justify embarking on a new Hearing lies with the applicant seeking to change the parenting order.
If there is no evidence other than the sworn evidence of the parent about that changed circumstance, the Court may dismiss your application, with costs.
Findlay & Reis [2020] FCCA 425
In Findlay & Reis, Judge Hughes dismissed an interim application by the father to vary parenting orders which had been in force for six (6) years, by which the children (now 13 and 11) were spending four nights per fortnight with him. His application sought equal time.
The mother’s application for dismissal was listed as a preliminary hearing.
The father’s case was that the children had repeatedly asked to spend week about time with him, that they were sufficiently mature to have not weight given to their views and that he was in a stable new relationship. Note: his case was based predominantly on the children’s age and their views allegedly expressed directly to him about wanting to spend more time with him.
After citing Rice & Asplund and the test in Marsden & Winch, the Court stated:
“the mother said the only occasion on which [equal time] was raised with her was..the result of the father’s influence and a desire by the children to meet his need to have an arrangement which is ‘fair’ as between the parents. The veracity of the competing evidence about the children’s views is not something I am able to determine on the strength of the untested affidavit material..
Based on the limited untested evidence before me, I am not persuaded further litigation will likely result in a substantial change in the children’s arrangements given the high level of acrimony and resentment between the three significant adults..The potential benefit to be derived by the children from any change is in my view, outweighed by the negative aspects the children will be required to endure for a period of more than 12 months until a trial can occur.”
Importantly, there was no independent evidence put by the Father of the changed circumstances and the court focused on the benefit versus the detriment for the children of the application being allowed to proceed to hearing.
What should I do if I want to change a parenting order?
If you are seeking a change to a parenting order, you will need to first attempt to negotiate those changes with your former partner.
By negotiating an agreement out of court, you will be able to avoid costly and lengthy litigation.
If an agreement is able to be reached, that agreement can be formalised by a consent order, filed with the family court of Australia.
If an agreement to change a parenting order is not forthcoming, you will need to file an application to the federal circuit court seeking a change to the parenting orders, and you will need to satisfy the court that there has been a significant change in circumstances since the parenting order was made.
At Barton Family Lawyers, we assist our client’s to negotiate and formalise final parenting agreements, through alternative dispute resolution and we recommend court action only as a last resort.
Wondering whether you have a case for a change to your final parenting orders?
Contact our Petrie family law experts to book a reduced rate consultation today for advice in relation to your specific circumstances.
For more information on when a parenting order can be changed. Click the below picture for an explanation by Courtney.
