After negotiating or litigating Parenting Orders, it is not uncommon that one party finds the Orders are not working for them. A common question we receive at Hume Taylor & Co is “Can I vary my Parenting Orders?”
In most cases, the answer is no. However, if you can demonstrate to the Federal Circuit and Family Court of Australia (“the Court”) that there has been a significant change of circumstances, you may be able to vary your pre-existing orders. This blog will outline possible situations which may be grounds for reopening a case, and explain the case law that supports this position.
Rice v Asplund
Your lawyer may cite the case of Rice v Asplund (1978) 6 Fam LR 570 to you when discussing the threshold to reopen your matter. This was the leading case in determining the law relating to varying an existing Parenting Order. One must demonstrate there has been a significant change of circumstances, or, there was vital information unavailable at the time the Orders were made.
The principle in Rice v Asplund is used to deter people from continually changing their minds and becoming perpetual litigants, which wastes the Courts’ sparse resources. The rule in Rice v Asplund is designed to protect children, not to assist parents. Chief Justice Evatt stated the Court “… should not lightly entertain an application… to do so would be to invite endless litigation, for change is an ever-present factor in human affairs.”
The Family Law Act 1975 (“the Act”), specifically section 65D(2), gives the Court the power to discharge, vary or suspend part or all of existing Orders. The Court’s paramount consideration is the children’s best interests when evaluating their care and welfare. The Court does not consider exposing children to protracted litigation is in their best interest.
Common grounds that may give rise to a variation of an Order include one party relocating, a parent completing rehabilitation from an addiction which previously prevented them from having a meaningful relationship with the children, or circumstances where one party has persistently breached the orders without reasonable excuse.
It should be noted if a party does persistently breach Orders, the other party can first issue Contravention Proceedings. Contravention Proceedings can lead to a range of penalties for the offending party. The penalties can be as minor as being required to offer make-up time or can be as serious as a term of imprisonment. The penalty will largely be decided by the explanation given by the offending party for the breach. If the Court deems the excuse to be reasonable, then the penalty will be less severe. If the breach is deliberate, the penalty may be more severe.
One of our experienced family lawyers at Hume Taylor & Co would be happy to meet with you to discuss the specific circumstances of your matter. We will give you our expert opinion on whether an Application to vary Orders would likely be successful. To make an appointment contact our office today on (08) 8223 3199 or use the chatbox function below.
This blog post was researched and written by Senior Associate Sriyani Partridge.