Australia: Final Parenting Orders that aren't working – can I vary them?

Last Updated: 24 May 2015
Article by Simon Creek

What happens if Final Parenting Orders made by the Family Court are not working for you, the other parent of your child or your child themselves?

Final Orders can be varied by:

  1. Consent (that is, both parties agree to vary the orders); or
  2. By order of the Court.

Until such time as either the consent of both parents is given or an order of the Court is made, both parties are bound by the Final Orders. To obtain a subsequent order varying a final order, the party seeking the order must:

  1. File an Application with an affidavit in support;
  2. Persuade the Court that circumstances have changed significantly since the final orders were made, so as to justify variation of the final orders; and
  3. Persuade the presiding judicial officer that varying the order is in the best interests of the child.

As with most matters in the Family Court, the decision to vary final parenting orders is ultimately at the discretion of the presiding judicial officer and decided with reference to the facts of each particular case. However, as key cases such as Rice v Asplund (1979) FLC 90-725 show, departing from a final order is not to be done lightly because:

  1. Varying or "reopening" final orders has the potential to lead to "endless litigation"; and
  2. Ongoing Court proceedings can and are likely to have a detrimental impact on the child or children at the centre of the proceedings.

So in what circumstances might the Court make such an order?

In the recent decision of Catterall v Catterall [2013] FMCAFAM 336, Federal Magistrate O'Sullivan considered an application by the Mother of the child to vary final parenting orders made by consent. The Mother's position was that the time Father's time with the child be significantly reduced. In support of her position, the Mother argued that due to a deterioration in the child's health

(unforseen at the time the final orders were made) and the geographical distance between the Mother and the Father, it was likely to be detrimental to the child to travel to spend time with the Father as prescribed in the final orders. The Magistrate agreed with the Mother and proceeded to vary the final orders on the following bases:

  1. The child's circumstances had significantly changed since the time the final orders were made;
  2. The risk of "endless litigation" was outweighed by the need to vary the final orders; and
  3. It was in the best interests of the child to vary the final orders.

In the matter of Biggs & Hurst [2014] FamCA 217, the Father made an interim application to vary final parenting orders. Those Final Orders were essentially as follows:

  1. The mother have sole parental responsibility for the children and that they live with her.
  2. The father to spend time with the children conditional upon a number of factors, being:
    1. For a period of 12 months of supervised time at [C] Contact Centre for a period of two hours in each alternate week, on a Saturday or Sunday, subject to the availability of the Centre.
    2. Within 12 months of the date of the orders, the father enrol, attend, and successfully complete a three month residential rehabilitation program at Ozcare at Cairns; and
    3. Within 12 months of the date of the orders, the father enrol, attend, and successfully complete the Parenting Orders Program and Focus on Kids Program offered by Relationships Australia Queensland.

The Final Orders stated that once the Father had satisfied ii and iii (above), he was to write to the Mother to advise her of same, and was required to provide documentary evidence from the various service providers that he had attended and successfully completed the relevant programs. In the event that he failed to comply with ii and iii (above) within a period of 12 months, the Final Orders stated that the Father would thereafter see the children for two hours at [C] Contact Centre once every six months.

Just over 12 months after the Final Orders were made, the Father filed this variation application to discharge the Final Orders, and he sought instead that the parties have equal shared parental responsibility, and that the children live with the Mother and spend substantial and significant time with the Father. By the time of the Interim Hearing the Father had significantly amended this application such that he sought that the order requiring him to attend a three month residential program be discharged, and that he spend time each second Saturday with the children.

This case involved domestic violence, alcohol addiction and mental health issues – all in relation to the Father. In dismissing the Father's application, the Court stated that it was not satisfied that there had been a material change in circumstances such to satisfy the test in Rice & Asplund and noted the following facts in support of that decision:

The change of circumstances claimed by the father is based, at least in part, upon his uncorroborated evidence that he has ceased consuming alcohol and that this has been the case since December 2011.
Over the same period the father's broader abhorrent behaviour has continued. He engaged in behaviour which led to his imprisonment for four months in the first half of 2012. He breached a Family Violence Order in August or September 2012 and was sentenced to imprisonment, although that sentence was suspended upon the father entering into a bond of being of good behaviour. He then breached another order and was fined in March 2013.

The father has sent text messages which are in breach of a Family Violence Order. If you are considering applying to vary Final Orders in relation to your children, you should seek expert advice from a family lawyer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Simon Creek
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