We all know that our lives and circumstances can change. It is common for our firm to be asked about changing Final Court Orders when there has been a change in our client’s lives or circumstances. Unfortunately, however, it is not always a straight forward exercise.
When a Family Law Court makes Final Orders in relation to the care and living arrangements of children, these Orders are based on what is in the best interests of the children taking into account all the circumstances of the case at that time. Once Final Orders have been made, they remain in place until the children are 18 years of age and can only be changed or varied in certain circumstances. The reasoning behind this is that the Court does not want parties or their children to be involved in endless litigation. This can cause difficulties for clients when their circumstances change, such as a parent re-marrying or having more children, a parent wanting to move away.
Final Orders can only be changed or varied when the Court is satisfied there has been a “significant change in circumstances” and that it is in the best interests of the children to make the change. This is referred to as the Rice v Asplund test.
In the case of Rice v Asplund, the Court made Final Orders for a three-year-old child to live with the Father. The Mother then applied to the Court to vary the Final Orders seeking for the child to live with her. The Mother argued that since the making of the Final Orders, she had remarried, obtained stable accommodation and the child was about to start primary school. The Court decided this amounted to a significant change in circumstances and made the existing Final Orders “unworkable and unrealistic”.
It is always best to try and make changes to Final Orders by consent, meaning the parties negotiate and reach an agreement about changing the Final Orders and send new Consent Orders to the Court. In these circumstances, the Court may still require an explanation or evidence as to the change in circumstances that warrant the making the new Consent Orders. Alternatively, you can enter into a Parenting Plan which can override the Final Orders.
If you and the other party cannot agree to change the Final Orders, then you will need to file an Initiating Application with the Court seeking changes to the Orders. You will need to attend mediation first if you have not done so in the previous 12 months.
If you or someone you know has Final Court Orders for parenting matters that they want to change, contact us on (02) 4322 0251 to speak to one of our Family Law specialists.