Change Parenting Orders Process: A Step-by-Step Guide
Family Law –Changing Court Orders Richmond, Glenmore Park, Penrith, Macarthur, Hawkesbury, Parramatta
After recent changes to the Family Law Act 1975, an additional Section 65DAA has been inserted that now sets out the applicable test in circumstances where a parent seeks to return to court to vary or change orders that have been already been made on a final basis.
This new section came into effect on 6 May 2024. Since that time, there have been two recent decisions by Judges in Division 1 of the Federal Circuit and Family Court of Australia that sets out the process involved in bringing an application to change or vary parenting orders. Prior to 6 May 2024 and the relevant section being inserted after recent amendments to the Family Law Act, the relevant case law could be found in the case of Rice and Asplund. That case made it more difficult for parents that were seeking to vary parenting orders and in the two recent cases after the changes to the legislation, both Judges have found in their decisions that it will now be easier for parents that are seeking to vary or set aside orders and come back to court to seek different or additional orders.
The relevant test as set out in the new section of the legislation can be summarised as follows:
- The rule as set out in the legislation applies to every case in which final parenting orders are sought to be discharged or varied.
- That the court can consider the variation under this section of the Act at any stage of the proceedings.
- If a parent brings an application to vary parenting orders using Section 65DAA and that application is dismissed, this of itself is not a parenting order.
- The express provisions as set out in the new legislation works in tandem with case law and it permits consideration of the reasons for the final parenting order and the material on which it was based as well as any material that is now available that may not have been available to the court when the original order was made.
- Most significantly, it is generally agreed that a parent no longer needs to establish and a court no longer needs to find that there has been a significant change in circumstance to enable that parent to ask the court to reconsider the orders. The court simply needs to find that there has been a significant change in circumstance.
- What constitutes a significant change can be a number of factors. We would suggest the following:
- Circumstances that have arisen since the original orders were made that impact the ability of the other parent to provide care for the child such as substance abuse, criminal charges or other factors that would potentially cause risk to the child or children.
- Variation in express views of the child, particularly if the child is older as compared to the original orders.
- A relocation or move so as to make it impractical to follow the previous final orders by one or both parents either by consent or unilaterally.
What constitutes a change in circumstance will vary and every case is different.
We highly recommend that you seek advice from a specialist lawyer before bringing an application to vary orders as these can be legally technical cases to run and you should obtain advice about prospects of success before proceeding.
Our expert team of family lawyers at our Richmond, Penrith, Glenmore Park, Macarthur, Parramatta offices can assist to provide advice in a one off initial consultation. Book online at www.rafton.com.au or contact us for a confidential chat on (02) 8607 7184
Family Law Divorce, Separation Penrith, Richmond, Glenmore Park, Parramatta.