Parenting Orders are made to be in place until the child is no longer a child, that is until the child turns 18 years of age. However, with the needs and circumstances of a child changing from day to day, how reasonable is it to expect that Parenting Orders will spell out the full extent of ongoing care and living arrangements for your child until they are 18? The answer – unreasonable.
While there is some certainty when it comes to final Parenting Orders, there is uncertainty in that it is impossible to tell where your child will be developmentally, socially and intellectually in the weeks, months and years that comprise their young lives. From infancy, to toddlers, to adolescents, predictability is not common terminology when it comes to parenting.
Are Parenting Orders Worth the Fuss?
So why have a Parenting Order in the first place? Well, at the very least you can schedule your child’s and your family’s lives around a set of arrangements spelt out in black and white, with the seal of the Court. You also limit the scope for conflict with the other parent in so far as where you are unable to agree, your final Parenting Orders is the end all be all.
If you find yourself in a situation where your Parenting Orders are unworkable or impracticable for your child, you or your family, you will need to seek legal advice as to your options to vary the existing Orders. In this regard, there are limited options that don’t result having to make an Application to the Court to vary your existing parenting arrangements. In short, you are either able to agree with the other parent to vary the Orders or if you are not able to agree, a Court will need to decide for you.
Unless both parents agree (preferably in writing), to make decisions or act contrary to the terms of a Parenting Order then you will find yourself in strife if you choose to act unilaterally. Without the permission of the other parent, any decision or action that is not in compliance with Parenting Orders may put you back in front of a Judge for having contravened the Orders – that is, breaching the terms of the Orders. A finding of fact made by a Judge about a parent having contravened Parenting Orders can carry serious penalties from fines to jail time, depending of the seriousness of the contravention.
It is always better to play it safe than sorry – make sure you seek independent legal advice about your options when it comes to changing Parenting Orders.
If the other parent will not agree to changing the final Parenting Orders (without delving into the reasonableness or unreasonableness of their refusal), your first option is to try mediation. Whether you are amicable with the other parent or can’t stand the sight of each other, it is a requirement that parents try mediation to resolve their differences.
There are limited exceptions to attending mediation prior to attending Court, these are:
- If the Application is for a Consent Order (i.e. both parents have agreed to amend the Parenting Order and wish to formalise the new agreement);
- There are reasonable grounds to believe that there has been child abuse or family violence by a party or there is a risk of child abuse or family violence;
- There are reasonable grounds to believe that a person has behaved in a way that shows serious disregard for their obligations under the Order;
- In circumstances of urgency; or
- One or both parents are unable to participate effectively in mediation.
If you have been able to reach an agreement at mediation, you can formalise this agreement by way of a Parenting Plan. A quick disclaimer - a Parenting Plan is not a legally binding document so if either parent chooses not to comply with the terms there are no consequences for their non-compliance.
Out of an abundance of caution, where you have been able to reach an agreement through mediation, you should consider amending your Parenting Orders by way of Application for Consent Orders. In doing so, it would be wise to seek legal advice and have a lawyer draft the new Parenting Orders along with an Application for consent orders to be filed with the Family Court of Australia. The end results? A fresh set of final Parenting Orders which are legally enforceable.
If you are in the unfortunate situation where you have attended mediation and were unable to reach an agreement, you will need to consider your next option – commencing proceedings in Court.
Commencing Proceedings in Court Seeking New Parenting Orders
Whether minor or major, any changes to Parenting Orders which have not been agreed will not be considered by a Court unless there has been a significant and substantial change in circumstances, that is the principle contained in an old case known commonly as Rice v Asplund.
It is the burden of the parent seeking to vary the Parenting Orders to satisfy the Court that there has been a significant and substantial change in circumstances that warrants a variation of existing Parenting Orders.
Broadly speaking, there are two classes of change:
- The parent seeking to vary the existing Parenting Order is able to establish to the Court that there was a material fact that was not disclosed to the Court when the Parenting Orders was made;
- The parent seeking to vary the existing Parenting Order is able to present evidence of new circumstances that have risen since the making of the original Orders.
So, what is a significant and substantial change? Well recent and older decisions in the Family Court have endorsed the following circumstances:
- Where one or both parents failed to disclose domestic violence perpetrated by one parent against the other prior to the making of final parenting orders;
- Significant opposing behavioural changes in a child;
- Where a child has been diagnosed with a significant health issue since final Parenting Orders were made which required a level of care for the child that rendered the existing Parenting Orders impracticable;
- Re-marriage of one or both parents where the re-married parent was able to provide stable accommodation and care for the child after having re-married;
- Where one parent has relocated or wishes to relocate; or
- Where one parent has contravened and/or continues to contravene final Parenting Orders.
To be clear, until both parents have agreed to vary an existing Parenting Order or there is an Order of the Court which varies an existing Order, both parents are obliged to comply with the terms of the existing Parenting Order. Ultimately, it is at the discretion of the Court to vary existing Parenting Orders and the Court will only do so, if it is in the best interest of the child.
If you are considering varying your existing Parenting Orders or thinking that you may fall into one or more of the categories of change, you must first and foremost seek independent legal advice. A suitably qualified lawyer should be able to tell you whether or not your circumstances satisfies the principle in Rice v Asplund and give advice as to your prospects in seeking the variation you propose.
If you are in a position where you need to revisit existing parenting arrangements via an Application to the Court or you have been served with documents seeking a revision, you are best placed to see a lawyer who can assist you with preparing your Application or Response.
At Forge Legal, we are well-versed in dealing with applications to revise Parenting Orders. Whether you are the parent seeking to revise the existing arrangements or you are responding to an application, our experienced family lawyers have dealt with both situations at great length and detail. Our goal is to give you honest and realistic legal advice about your prospects and your options and tailor a strategy suited to your individual needs. We give you clarity and direction when it comes to working out your next best steps to give you confidence moving forward. Contact one of our experienced family lawyers without delay for a consultation.