Changing Parenting Orders

Can Parenting Orders be Changed?

Changing Parenting Orders is possible with consent from the Court.

Once a Parenting Order has been made by the Court (whether by Consent or a Court hearing), if a party seeks to vary or change those Orders, the Court will need to be satisfied that there has been a material or significant change of circumstances which would justify the Court re-opening the matter. This is quite commonly referred to as the rule in Rice & Asplund (Rice & Asplund (1979) FLC 90-725).

In the Court’s view, it would not be in the children’s best interest to be the subject of continuing litigation between their parents. However, the Court recognises that circumstances in children’s lives will change over time and in some circumstances parenting orders are made when the children are young and it may be necessary to revisit the arrangement at a later time.

It is possible to change the agreement between the parties by way of consent, but what happens if an agreement cannot be reached?

When an Application is made to change an existing parenting Order, the Court may determine the issue as to whether there has been a change in circumstances at a threshold hearing, that is prior to proceeding on the path of a full Hearing and may be determined without the assistance of a family report. However in some cases, it may not be easy to determine the threshold question without going into the merits of the matter. This can include a full Hearing involving the cross-examination of witnesses and the preparation of a Family or Expert report. Regardless of when the Court determination is occurring, the paramount concern will be the best interests of the child.

What is considered a ‘change in circumstance’?

While each case will be determined on their respective merits, examples of change of circumstance considered sufficient and something to justify re-opening the matter to determine who a child should live with include:

  1. psychological and physical changes in children as they grow up;
  2. re-marriage enabling the parent who the child did not live with, to provide a warm family environment
  3. re-marriage and recovery from former mental health problems; and
  4. a child commencing school.

If you want more information about changing parenting Orders or if you require assistance with any other area of Family Law including property or child support matters please contact Watts McCray Lawyers.

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