In some circumstances, parties will seek to vary or rescind care Orders after they have been made for a period of time.
As a general rule, it is extremely difficult to set aside Orders and parties that bring such applications to the Court must show there has been “a significant change in relevant circumstances since the care Order was made”. In bringing the application to the Court, it is firstly a requirement that the Court grant leave for you to reopen the case. This simply means that you have permission from the Court to continue and have your case heard.
If leave is not granted by the Magistrate that hears your matter, then your application is dismissed and you cannot proceed forward.
If leave is granted, then your matter would proceed with each of the other parties giving evidence and possibly attending Court for a hearing. In considering whether to grant leave, the Magistrate will take into account the following matters:
- The nature of the application that you are making.
- The age of the child or young person.
- The length of time that the child or young person has been with the current carer.
- Any plans for the child in the future.
- Whether you have an arguable case. This means your likely chance of success even if you can show there has been a change in circumstance.
In the event that you are thinking of seeking to vary or set aside Orders, please discuss this in detail with your Solicitor who will provide advice to you as to the prospects of success. It is often a case of picking the right timing when bringing these applications to the Court and not to bring them too soon as there will be less chance of success.
When applications are made, they are brought under Section 90 of the Act and are often called “Section 90 Applications”.
Contact our Sydney Family Law Office if you need any help.