4 Steps To Changing Your Parenting Order

1. Talk to your ex-partner

It seems obvious enough that if you want to change an existing parenting order, and if it is safe to do so, is to reach out and speak to your ex-partner. Clearly articulate why the current parenting order is not working or is unlikely to work in the future. If you reach an agreement, it is best to document that change either by way of a parenting plan (note that a parenting plan is not legally binding) or, better still, get a new parenting order. A lawyer can help you make an application for a Consent Order and draft the new order for completeness.

2. Seek Legal Advice

If you can’t reach an agreement, get some legal advice. Obtaining legal advice from an experienced family lawyer can help you understand your legal position and your prospects of success should a court application ensue.

Armed with that knowledge, you can continue to negotiate with your ex-partner or proceed with family mediation.

3. Attend Mediation

If it is unsafe for you to communicate with your ex-partner or agreement is not forthcoming, attending mediation with an accredited family dispute resolution practitioner is the next step.

You will not be able to issue an application for a variation until you have attended family mediation and made a genuine effort to come to an agreement.

A mediator can help you and your ex-partner communicate your concerns safely and respectfully. Your mediator will help you generate options, negotiate and come to an agreement.

If the changes you seek are complex, having a lawyer attend the mediation with you is helpful. Your lawyer can provide you with on the spot legal advice as the mediation unfolds and increase your chances of a positive outcome. If you attend mediation with a lawyer, this is known as lawyer-assisted mediation and is a cost-effective way to reach an agreement without going to Court.

4. Make an application to vary a parenting order.

If all else fails, you may wish to consider applying to vary the parenting order in the Federal Circuit and Family Court of Australia. However, before you do so, make sure you get legal advice about your prospects of success. This is a complex area of law to navigate.

The Court will consider your application to vary a parenting order only if you can satisfy the rule in the case of Rice -v Asplund. The Court is reluctant to re-open final parenting orders, and in CJ Evatt’s words:

“To do so would be to invite endless litigation for change is an ever-present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.”

Broadly speaking, there are two categories for change:

• The parent wanting to vary the existing parenting order can establish that there was a material fact that was not disclosed to the Court when the parenting orders were made; or
• The parent wanting to vary the existing parenting order can present evidence of new circumstances that have arisen since the making of the original parenting orders.

Even where there has been a significant change in circumstances, you must establish that any change to the parenting orders is in the child’s best interest.

Although no prescribed change will satisfy the rule, each case turns on its own facts to determine whether the change is sufficient to revisit the current parenting order. There are some situations in which the Court has been satisfied, including:

• Where one parent seeks to relocate with their children
• Where one or both parents have re-partnered or remarried
• Where there has been an abuse of the child
• A parent has not spent time with the children following a court order for a significant time but subsequently seeks to enforce compliance.
• Where one parent has contravened or continues to violate a final parenting order.
• A parent has received treatment for a drug or alcohol addiction and is now clean.
• Since the final parenting orders were made, a child has been diagnosed with significant health needs, making the current parenting orders impracticable.
• Where a child has expressed strong views now that s/he is older.
• Where a child or parent develops a mental health issue.

Whether there has been a significant change is often dealt with by the Court as a preliminary issue. If this is found lacking, the Court will dismiss your application and can make a cost order against you. The same is true if the Court must consider the merits before determining whether there has been a significant change of circumstances.

To be clear, until both parents have agreed to vary an existing parenting order or an order of the Court that changes a current order, both parents are obliged to comply with the terms of the existing parenting order.

The issue of varying a parenting order is complicated. If you’re considering changing your existing parenting orders or thinking you might fall into one of the categories above, take independent legal advice.

Arora Legal offers a range of fixed-fee legal and mediation services.  To find out how we can help you, BOOK your free 15-minute consult today or call 07 3180 0129 and speak to our specialist lawyer.  By contacting us today, you can take the first step towards resolving your family law issue and moving on to a brighter future.