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Derek Legal Blog

When Can I Change Parenting Orders?

After separation, the arrangements for children of a marriage or a de facto relationship are governed three ways.

 

1.       By mutual agreement between the parties

2.       By a Consent Order in the Family Court or the Federal Circuit Court of Australia

3.       By an Order made after trial in one of the two Courts.

 

Where the arrangements are governed by mutual agreement without the need for an Order, then the parties are free to change the arrangement at any time as long as there is agreement. If there is not agreement, then the parties will have to go into the Court system to resolve that difficulty.

The Law mandates that all decisions in relation to children must be in their best interests. It follows therefore, that if the arrangements are governed by either a Consent Order or an Order after trial, those Orders reflect what is in the best interests of the children.

Section 60CC of the Family Law Act 1975 provides for how Court determines what is in the child’s best interests. Of particular importance, when considering trying to change a current Order is Section 66CC (3)(D) which provides. “The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

 

(i)                  Either of his or her parents; or

(ii)                Any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living”

 

Section 60CC (3)(L) which provides “whether it will be preferable to make an Order that would be least likely to lead to the institution of further proceedings in relation to the child.”

Since 1978, Courts exercising the Family Law Act jurisdiction in relation to children when asked to vary an existing Order invariably apply what is called ‘The Rule in Rice v Asplund’. Fundamentally, what that case says is the Court should not change Orders unless there exists a substantial change in circumstances.

What is a substantial change in circumstances is of course a question of fact and will vary in a case by case basis. For instance, if the custodial parent wishes to take the child out of the country that would be a substantial change in circumstances. Similarly, if the Orders were made at a time when the age of the children was such that their wishes were not taken into account and now their age is, that would be a substantial change as is allegations of sexual abuse. A decision on the Rice v Asplund point can be done on the first return date on the material filed or after a full hearing. But the test remains the same and is not for the Judge hearing the application to decide whether he or she would’ve made the decision that the first Judge made of the Orders under challenge, but rather have the circumstances so changed that, that Order would not have been made and should be changed.

The test remains what is in the best interests of the child.

Posted in: Derek Legal Blog at 19 February 18

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