Application to Vary Parenting Orders

Under section 64B(1)(b) of the Family Law Act 1975, a Court can make an Order varying an existing Parenting Order, or part of a Parenting Order. This is because of the view that Parenting Orders are never “final”. However, where the Court has made final Parenting Orders it will not always readily re-open the matter, and the Court always retains jurisdiction to decide.

In the case of Rice v Asplund (1978), a Parenting Order was made granting the father custody of the child of the marriage. Two years later, a further hearing as to custody resulted in an Order reversing the previous Order and granting custody to the mother. There was then an appeal to the Full Court by the father. It was submitted on behalf of the father that in order to justify the review of the Parenting Order the mother should have satisfied the Court that there had been substantial change in the circumstances since the earlier Order.

The question of what constitutes a “substantial change in circumstances” has been considered by many cases, and recent cases have resolved this question by upholding the principle that the child’s best interests must be the paramount consideration in making a Parenting Order, including an Order varying an existing Parenting Order.

Some examples of changed circumstances resulting in a variation of Parenting Orders include:

• The proposal of a custodial parent to take a child out of the country to permanently live: Fryda v Johnson (1979);
• The remarriage and recovery from prior mental illness by the non-custodial wife: Houston v Sedorkin (1979);
• Remarriage and stabilising of the life of the non-custodial wife: Rice v Asplund (1978); F v N (1987);
• Failure of a party to disclose an intention to take the children out of Australia, such an intention having been formed at the time of the original hearing: Mobasser v Nankervis (1982).

Furthermore, it may sometimes be the case that despite there being a substantial change in circumstances, further litigation by allowing an application to vary existing Parenting Orders to proceed may not be in the best interests of the child.

In the case of Marsden v Winch (2009) the Full Court considered whether to allow an applicant to present further evidence to establish that there has been a relevant change in circumstances before deciding whether to proceed to a full rehearing, and indicated that the Court must look at the following matters in deciding whether to allow an application to vary existing Parenting Orders:

• The past circumstances, including the reasons for the decision and the evidence upon which it was based.
• Whether there is a likelihood of Orders being varied in a significant way, as a result of a new hearing.
• If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
• Whether or not a proposed Application to Vary Parenting Orders has merit is not always cut and dry.

Our family lawyers are experienced in these matters and can provide you with the advice and representation you need if you are considering an Application or wish to resist an Application made by the other parent (or party who has parental responsibility).

If you need assistance with a child custody matter or an Application to Vary Parenting Orders, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.