Although a final parenting order is not actually considered to be “final” in the true sense of the word, the Court will not lightly entertain an application to reverse such an order, on the basis that to allow a party to do so would invite endless litigation for change.  

Are parenting orders final?

A parenting order is an order which determines which people have or share responsibility for the care and welfare of a child to a particular relationship. A parenting order may deal with many aspects of the child’s needs such as who they are to live with, who they are to spend time with, who has parental responsibility for them, how the child can communicate with other people, along with a variety of other factors. Parties to a parenting order must respect and comply with the terms of the order.

Parenting orders can either by final or interim. An interim order operates until such a time when the court makes a final order. A final parenting order operates until the child attains the age of 18 or until such a time when the court may change, vary, suspend, or discharge the order. Therefore, the Family Court has the power to not only make parenting orders but also retains the power to vary, discharge, suspend, or revive any orders it makes under s 65D(2) of the Family Law Act 1975 (Cth).

Given the court acts in the best interest of children in making parenting orders, overturning such orders is not treated lightly. Generally, there needs to be significant new facts and circumstances that arise before the court can review the desirability of continuing an existing order and consider making changes to that order.

The rule in Rice & Asplund

In the case of Rice & Asplund the court provided guidance as to when review of a final parenting order may be appropriate. It suggested that there needs to be a material change in circumstances before a parenting matter can be re-ligated after final orders have been made.

The rule serves to protect children from further involvement in what the court deems as unnecessary litigation, such as when an unsuccessful party seeks to re-ligate an issue in the hope of obtaining a more favourable outcome. The rule is a manifestation of the paramountcy principle which places the best interest of the child as the court’s foremost priority. The rule is also reflective of a reluctant to re-ligate issues where this does not reflect the best interest of the child.

What circumstances may amount to a material change in circumstances?

As the circumstances of each case depend on their own facts, whether changes amount to a material change in circumstances is necessarily fact dependent and unique to each different case. However, some facts which may give rise to a material change in circumstances include events which are significant such as:

  • Allegations of child abuse.
  • The proposed relocation of a child or parent.
  • If orders were made without proper disclosure of facts.
  • A new parenting arrangement which is not reflected by the existing parenting orders have been entered into by the parents.
  • Any other factor which, if it existed at the time the final parenting order was made, would have likely affected the nature of the order made.

If a party can establish facts which give rise to circumstances which were significantly or substantially different to the factual background to which the parenting order was based upon, then it may be possible to have that parenting order reviewed by the court. If this occurs, then a new parenting order may be made which reflects the new circumstances pertaining to the child.

It should be noted that the threshold for a change to be material is high. The court will not simply allow review of orders on the basis of small or minor changes to the life of a child, as this may disturb the consistency to the lifestyle of the child which may not be in their best interest. Similarly, a party cannot seek review of an order simply on the basis of a previous unfavourable outcome such as being allowed to see the child for less time than wanted.

If you would like advice in relation to your parenting order or any other family law matter, please contact our team on 42 222 666 or at hansons@hansonslawyers.com.au