Many Court orders are “one and done” style orders.

That is, the parties comply with the orders, do the things required (pay the money, transfer the property) by those orders and then they’re done. From that point onwards, those Court orders have very little impact on the lives of the people involved.

Parenting orders are slightly different though.

Parenting Orders – A Moving Feast?

As part of the separation process, spouses with children will ordinarily secure some kind of agreement or Court order that sets out the living arrangements of the children of the relationship until they are 18.

While some people choose to enter informal arrangements, most often parenting arrangements will be put in place by a Court order. You can get parenting orders:

1. by consent, if you and your ex agree on the orders that should be made; or
2. after a hearing, where the Judge determines the appropriate orders.

However, parenting orders are bit different from many others, in the sense that parents of children must follow the orders on a continuing basis until the children are 18 (usually).

Of course neither the Judge hearing the matter, nor you and your ex spouse, can accurately predict the future.

So while parenting orders are made on the best information available at the time, what happens if they become unsuitable or the basis relied on to make them changes?

Does “Final” mean Final?

As a fundamental principle of justice, Court orders (including parenting orders) are considered “final”.

The basic policy idea here is that if Court orders were treated as anything other than final, it would open parties and the Courts to a never-ending string of litigation where protagonists constantly attempted to vary, tweak, modify or cancel the Court orders. As a result nobody would ever have any certainty, and the system itself would not function properly in its attempt to clarify the parties’ rights.

So the starting position is that parenting orders are final and should not be changed.

However, because parenting orders are a special situation and bind the parties over an extended period, the Courts have acknowledged that in some limited circumstances it might be appropriate for the Court to consider modifying the final parenting orders.

The Main Requirement – A Significant Change in Circumstances

The principal requirement you are going to need to meet if you want to vary final parenting orders is to demonstrate a significant change in circumstances.

This captures the understanding we’ve mentioned above – the fluid nature of circumstances when it comes to the factors upon which parenting orders depend.

However, not just any change will be enough to convince the Court to entertain a request to vary the orders. The fact that your ex allowed a child to get an adventurous haircut, or bought the wrong colour shoes, are not going to be sufficient to support an application to vary the orders.

So with that in mind, below we set out a few examples of things that could be significant enough to warrant a discussion about varying your parenting orders.

Be aware though, that there is no “one size fits all” approach here – the Court is going to look at all of the circumstances of the original orders, the significance of the changes that you believe exist, and whether or not those warrant the orders being varied. So, it’s critical to get advice first before leaping in to a Court application.

Example 1 – Relocation

If one parent is intending on a significant relocation, then that could readily have a significant impact on any parenting orders that might be in place. Of course, moving one street over probably won’t be significant, but moving interstate or to another country is a pretty major change. If that parent has child access or custody, then some changes to the existing arrangements might be needed.

Example 2 – Substance Abuse

If parenting orders were originally made in the context of one parent having substance abuse problems, and that person can demonstrate that those problems have been addressed, it could be that the Court might consider a variation to the original parenting orders.

The reverse would be similarly true, if a parent developed such problems after the original orders were made.

Example 3 – Changing Circumstances Over a Long Time

While well-considered parenting orders attempt to contemplate the needs of the family over the longer term, sometimes after a long time (say if the parenting orders were made when a child was an infant, and they are now 15) those orders might simply not be appropriate to meet the needs of both parents and child anymore.

Of course, over that time there could also have been significant changes in any number of other categories that might, themselves, constitute a reason to seek a variation to the orders.

Example 4 – Abuse

If one parent can provide evidence that the other has abused the child, then that could be significant enough to seek variations to the parenting orders to ensure the safety of the child.

Example 5 – Significant Missing Information

If one party can demonstrate that a significant piece of information was withheld from the Court when the original orders were made, it might be that the Court would consider varying the orders.

Of course, for this to work the information would need to be important and tangible enough that it would have made a difference to the orders in the first place. A piece of information could be “material” in one sense, but if it would have made no difference to the outcome then it isn’t significant for the purposes of varying the original orders.

The Process to Vary Parenting Orders

So, with those examples in mind, what do you do if you think there is a need to vary parenting orders that are already in place?

First, if at all possible, it’s best to approach the other parent to see if they might agree to vary the orders.

Generally speaking the Court will expect you to have made some attempt at reaching a resolution before making your application, though in some cases it accepts that is not feasible.

If you can agree with the other parent, you can lodge consent orders asking the Court to vary the original parenting orders.

If not, you will need to work with your family lawyers to put together a comprehensive affidavit setting out the relevant facts and circumstances you are relying on, and make an application to the Court.

The timing and steps that follow from there will ordinarily depend on the urgency and circumstances. However, typically the other parent will at least have an opportunity to put on their own material in response. From there the Court may order other steps to be undertaken or list the matter for a hearing.

It’s important to remember that the Court treats parenting orders as final. This is therefore another area where it’s important to first get solid advice from family lawyers about whether your situation is likely to meet the necessary tests. Otherwise you run the risk that the Court will not only dismiss your application, but that you may get an order for legal costs against you too.