When parents separate, they often need to make arrangements for the care of their children. If the parties choose to formalise the agreement reached, they do so by way of Parenting Plan or Orders.
A Parenting Plan is an informal document which can be changed as often as required. They are not binding on the parties. Orders on the other hand are binding on the parties. They are made by the Court, either by consent of the parties (often where no one needs to attend court), or as a result of court proceedings. They are made with the intention that they will be in place until the children reach the age of 18 years and they can only be varied or discharged in limited circumstances.
Where there is no agreement to vary the Orders, there must be a significant change in circumstances or fact to justify the Court reopening the case. A significant change in circumstances or fact is something that has happened that has a major impact on the children’s lives. Examples of significant changes or fact in circumstances include:
- One of the parents moves away.
- One of the parents gets a new job that requires them to travel more.
- One of the parents gets married or enters into a de facto relationship.
- One of the parents becomes ill or disabled.
- The child’s needs change, such as if they start school or need special needs care.
- A circumstance has arisen which makes the carrying out of the Orders impracticable.
- The age of the children has increased and the orders are no longer suitable or practicable.
Changing Parenting Orders Without Going to Court
If you and the other parent can agree to the change in parenting orders, you can avoid going to court by signing consent orders and filing these with the Court for consideration. Consent orders are a legally binding agreement between the parents. Once the consent orders are made by the Court, they become enforceable orders.
If you and the other parent are unable to agree to the change in parenting orders, you may be able to change the orders through mediation or family dispute resolution. This is a process where a neutral third party helps the parents to reach an agreement and is necessary in most cases before you can apply to the Court in a parenting matter.
Changing the Orders where there is no agreement
If you are unable to agree to vary the parenting orders through mediation or family dispute resolution, you may need to apply to the court for an order to vary the orders. If you apply to the court, you will need to file a document called an “Initiating Application.” The application will set out the changes that you are seeking and the reasons why you believe the changes are necessary.
The court will hold a hearing to consider your application, often this will be early in the proceedings as the Court will need to establish that there has been a significant change in circumstances to justify the Court rehearing the matter. The court will hear evidence from both parents and from any other relevant people, such as the children’s teachers or doctors by way of subpoena. The court will then make a decision about whether to change the parenting orders.
The Court will then consider a number of factors when deciding whether to change the parenting orders, including:
- The best interests of the child
- The ability of each parent to care for the child
- The stability of the child’s current living arrangements
- The impact of the change on the child’s education and social life
- The impact of the change on the children’s relationship with both parents
- The children’s views, if appropriate
- Other relevant considerations
The court will not change the parenting orders unless it is satisfied that the change is in the best interests of the child. This means the Court will always consider what is best for the child, even if that means one parent does not get what they want.
Changing parenting orders can be a challenging process. It can be difficult to agree on the changes that need to be made, and it can be expensive to go to court. Breaching Orders can have serious consequences, so it is important that the process is undertaken if the needs of the children have significantly changed making it difficult for the Orders to be carried out.
If you are considering varying or discharging parenting orders, it is important to speak to a family lawyer first to ensure that you do not take any steps prematurely, putting you at risk of breaching the Orders. At Gillard Family Lawyers we can help you understand the process and ensure that the right steps are taken to achieve the variation to the Orders.
We offer a fixed fee initial consultation for $220. Simply Contact one of our friendly staff members to make an appointment.