Changing Parenting Orders
Amending Existing Orders
Following the finalisation of a Parenting Order, circumstances may require the Order to be amended, for example particular terms may no longer be practical due to one party relocating. If you are considering changing parenting orders, there is a particular process that needs to be followed.
How to Apply for an Amendment to a Parenting Order
The first step is ensuring the amendment is in the best interests of the child/ren, and not a “one-sided” amendment, as that is the Court’s primary concern. No amendment will be considered or granted if it goes against the child/ren’s interests. You will also need to show the Court evidence of the significant change in circumstances that is/are initiating the amendment, and then a Consent Order will need to be drafted.
Reasons for Altering an Order
There is no specific criteria that needs to be met in order to have the Court change an existing Parenting Order. However, for the Court to change an existing order one or both of the parties need to show there has been a ‘substantial alteration’ to the circumstances surrounding the Order. Examples of a ‘substantial alteration’ leading to an amendment are:
- Where the variation will be in the child’s best interest as a result of a change in circumstances for either party involved or the child; and/or
- Where information regarding the welfare of the child has come to light and was not provided to the court initially when the parenting order was handed down by the court.
When the Parties Agree to Make an Amendment
If both parties to the existing Order are in favour of the amendment, the process is relatively straightforward. Consent Orders can be made where both parties acknowledge that they are in agreement to the proposed alterations and the Court can then formalise the changes without the need for either party to attend Court.
The alternative to amending Orders when the parties agree is to put the change into a Parenting Plan, although these are not legally binding per se. This option significantly saves both parties from expensive legal fees and further simplifies the process.
When the Parties Do Not Agree to Make an Amendment
In situations where an agreement cannot be met, it may be necessary to involve the dispute resolution service that is provided by the Family Court and Federal Circuit Court of Australia to reach an agreement. This way the Court ensures both parties have attempted to resolve their differences and come to an agreement regarding their child/children before the Court is required to make a decision.
FAQ
Parenting orders can be changed if circumstances have significantly changed since the original order was made, or if both parents or carers agree and apply for a consent order. The Court will assess whether the proposed change is in the child’s best interests.
If a child is mature enough to express views, the Court may consider their wishes. However the Court’s primary concern is the child’s best interests and consent from the child or parent is not always required for a variation application.
The time frame depends on whether both parties agree (consent order) or if the matter proceeds to Court. Consent based variations can take a few weeks to finalise whereas contested applications can take several months depending on Court schedules.
It is strongly recommended. A family lawyer can guide you through the process, ensure applications are properly prepared, represent you in Court if needed and help negotiate parenting plans that protect the child’s welfare.
Yes. A parenting plan can be negotiated between parents or carers without Court involvement. However such plans are not legally binding unless converted into consent orders by the Court.
The Court considers the child’s best interests, any changes in circumstances, the child’s needs and views (if mature enough), the relationship with each parent or carer, and whether the change supports the child’s welfare, stability and ongoing development.
Jessica Sinclair
Chief Counsel/Family Dispute Resolution Practitioner