When an Order is made by the Court concerning parenting matters either by consent of the parties or by Order of the Court on a final basis, both parents have a reasonable expectation that they can rely on those Orders remaining in effect without change for the balance of the child/children’s lives.
It is not uncommon however for an individuals personal circumstances to change from time to time, and commonly the Family Court is asked to consider amending existing Orders as they no longer suit one party to the Order.
The question of whether or not the Court will entertain amending existing Orders was considered in the Full Court of the Family Court decision of Rice v Asplund where the Court was asked to amend existing final Orders.
In that case, the Full Court of the Family Court established a threshold test whereby it was determined that a parent is at liberty to apply to the Court to amend existing final Orders, however to do so they must first satisfy the Court that there has been a significant change in circumstances since the original Orders were made which would give cause for any amendment to existing Orders.
Over time the Family Court has provided further guidance on the issue of what would, and would not be considered a material change in circumstance capable of satisfying a Court to consider amend existing Orders.
Some examples of strong arguments which have been placed before the Court that have been considered a ‘material change in circumstance’ are;
1. Where a Party can no longer comply with an Order of the Court due to a change in their own medical circumstances;
2. Where a Party can no longer comply with an Order of the Court due to a change in the child/children’s medical circumstances;
3. Where one Party has repeatedly breached existing Orders without reasonable excuse;
4. Where one Party has commenced a new serious relationship, and the Court is satisfied that moving to be with that new partner is both necessary and would improve prospects for both the parent and the children, whilst still maintaining a meaningful relationship with the other parent;
5. Where one Party is required to move as a result of their employment – eg deployment within the Military.
6. Where the child has become older to the stage where they can sufficiently articulate their wishes, and have expressed a strong desire to vary the Orders with valid reasoning’s.
7. Where one Party to the Order has become aware of additional information that was not available/aware of at the time the original Orders were made.
Some examples of arguments that have been put before the Court that have not been considered a ‘material change in circumstance’ are;
1. Where one party in reflection is now not satisfied the original Orders;
2. Where the children are ageing and advancing from Primary School to High School;
3. Where one party wishes to move for employment and a similar opportunity exists locally without the need for relocation;
4. Where one party wishes to move to be closer to a new partner, and the Court is of the view that in the circumstances the new partner could readily relocate.
Parents wishing to amend existing Orders should also consider that the above examples are merely provided as a guide, and ultimately a Court will determine each case on its own merits.
Finally, parents should also consider that if both parents agree, new Orders can be entered into by Consent irrespective of whether a material change in circumstance has occurred.
Should you wish to obtain further advice concerning the potential amendment to existing Parenting Orders, please do not hesitate to contact our Family Law team at 13 58 28 to arrange a free initial family law consult to discuss the options available to you.