The Final Parenting Orders and Variation

Gurpal Singh is the principal lawyer of Melbourne law firm, Saundh Singh & Smith Lawyers

The parenting orders made by the court carries complete sanctity and it is expected that the parties who subjected to the orders must comply with the same by paying proper attention to the terms so designed therein. In general situation, the orders are drawn after proper deliberation between the legal representatives of the parties. Some part of the orders is made with consent and other part made by the court after hearing the conflicting stances of the parties. Notwithstanding all the care and attention, it had often been seen that a new situation or change in the existing situation would make the orders impracticable and not carried out as per the letter and spirit of the otherwise binding dicta.

However, once the proceedings are finalised, the court will not lightly entertain an application to reverse such an order on the basis that parties must be discouraged to continue the endless litigation.

A parent or another party directly affected by the impact of the binding final parenting order can request the court for a review of the orders. The curious question, however one needs to ponder over is whether variation and material change in the order is a plain and simple exercise? It is not so. The family court is governed by the principle of ‘child’s best interest’ based on substantial or significant change in the circumstances rather than the convenience of one of the parents. The changes in the circumstances need to be of a serious nature to warrant a variation.

Such a threshold test was developed in the decision of the court known as ‘Rice v Asplund’. Such a threshold test is not applied uniformly in every case but an assessment is made on the peculiar facts of each case. One is required to make a strong and convincing case for the variation of the binding final parenting orders. In this case of Rice and Asplund, the issue was in regard to the living arrangements of the three-year-old daughter who had previously been ordered to live with the father. However, after nine months of the orders, the mother sought to change the final order seeking the child to live with her and only spend time with the father. The mother presented that the original orders so made doesn’t reflect the best interests of the child.

The parenting orders can be varied on an application of a party to the cause in the following circumstances:

  1. In the event of contravention of the order where a party to the order is repeatedly failing to comply with the existing orders without reasonable excuse
  2. If the party cannot reasonably comply with the orders on account of intervening circumstances
  3. If the orders are no longer reflecting on the actual arrangement for the child given the conflict between the parenting plan and the order of the court. Interestingly the parenting plan is not an enforceable document so it becomes imperative that the conflict between the parenting plan and the parenting order be cured.
  4. By mutual resolution of the parenting issue.
  5. Material change in the circumstances of one of the parents including moving to a different jurisdiction requiring the material and physical residence of the child.
  6. In the cases, where the existing orders were made without consideration of the material information presented to the court whether by inadvertence or intentional.

In another case, the final parenting and property orders were made one year prior to the application for variation in respect of the 10-year-old child. The father sought an order that allowed distributions made to the child from a trust be paid to both the parties and applied to the school fee and other expense of the child. The father said such orders were required as he had no knowledge of the existence of the distributions at the time of the original orders. The court however, dismissed the application having fount that there was insufficient evidence to establish the material change of circumstances and also that there was potential for adverse impact on the child by virtue of exacerbating existing parental conflict by further litigation. Such a proposal was not directly beneficial to the child.

A person seeking to vary the final parenting orders should at the first instance seek to resolve the situation through dispute resolution process and arrive at a consensus amongst themselves. It is often seen that even despite the significant change in the circumstances the court might not agree to variation considering the same to be non-desirable.

By Gurpal Singh

Read more from Gurpal Singh:

Property Division in the Wake of Relation Breakdown

Surrogacy and Parentage

Pre-nuptial (prenups) Binding Financial Agreements

Family Law – parallel proceedings in Australia and India

Non-human children of the family – Separation predicament

Spousal Maintenance – Interim and/or Urgent