Family court orders for children are intended to be final and put an end to litigation. As such, there are only limited circumstances in which the courts will agree to vary them. To convince a court that existing orders are no longer appropriate or effective, it’s necessary to prove to the court that your circumstances have changed in a significant way. Let’s take a look at what the courts might consider to be a significant change.
If you and your ex agree to a change, it can be effected via consent orders lodged with the family courts. If, however, you disagree, you’ll need to make an application through the courts. As this becomes a litigious matter, it requires that parties comply with pre-action court procedures, both for property and for parenting matters. This includes attempting resolution via Alternative Dispute Resolution. If the dispute proceeds to court, you’ll need to persuade the court of your significantly changed circumstances with clear evidence to show that existing orders are unworkable.
Ultimately, the only question that is relevant in this situation is: has there been not just a change but a significant change in circumstances relevant to parenting matters?
Significant changes in parenting matters
The courts, in seeking resolution of matters in the best interests of children, draw on the principles of a 1978 case known as Rice & Asplund, where it was noted that “change is an ever-present factor in human lives”. Therefore, you can’t simply re-litigate constantly just because a change of some kind has taken place. Instead, the change must be truly significant or material in nature.
This legal authority ensures children are protected from ongoing litigation and instability by only allowing courts to vary earlier court orders if the circumstances have changed such that a court needs to “consider afresh how the welfare of the child should be best served”, as the court said in Rice & Asplund.
Parenting: significant change examples
There is no definitive list of situations or circumstances that will ensure an application to change the orders will succeed. However, based on case law, people have successfully satisfied a court that the Rice & Asplund threshold has been met in situations involving:
- a parent who wishes to relocate
- a change in the partnership or other living situation of a party (eg. repartnering or remarrying) if that has impacted on the child or otherwise materially changes the circumstances and considerations as to what is in the child’s best interests.
- abuse or family violence
- changes in the health of a party or a child
- existing orders no longer reflecting the actual arrangements
- existing orders having been made without all relevant information being made available to the court prior to the making of the orders
- a substantial period of time has elapsed between final orders being made and the application being brought if that has resulted in a material change (ie. court orders were made when a child was very young and the child is now older and has particular views about their living arrangements, which a court may take into consideration)
- contravention of orders
It’s important to note that what seems like significant change isn’t always regarded as such by the courts, even if there are several reasons at once. For instance, in one case a dad wanted to change orders on the grounds that aspects of his life had changed: he had moved house, changed jobs, had to commute for a longer time, and his relationship with his girlfriend had “evolved”. The courts ruled that the changes in the father’s life, even if considered cumulatively, had not been “material”, or significant, enough.
Not all change is considered significant or material, however it all depends on the unique circumstances of a matter. For instance, a parent who relocates a short distance away might not be able to convince a court that this is a significant change; a parent who relocates say, 200km away might well find this is considering material enough to impact on implementation of orders. It’s up to the discretion of the courts once all the evidence has been taken into consideration. It is a high threshold to meet as the courts want to ensure that parents are not litigating their matter frequently due to any change that has occurred.
Significant change in property arrangements
Again, court orders are meant to be in full and final settlement of parties rights to the marital asset pool and to completely sever the financial relationship. Therefore, there are only limited situations in which a court will vary property orders.
Compared to parenting orders which must be in the best interests of children, with financial orders the courts will be aiming at ensuring orders are “just and equitable under all the circumstances”.
Property: significant change examples
As with parenting orders, there are only limited circumstances in which a court will decide that property orders may be set aside and new orders made. These essentially fall into three categories:
- circumstances have changed so significantly since the order was made that it is impossible to enact the terms of the original court orders
- there has been a miscarriage of justice by way of fraud, duress, suppression of evidence or other such circumstances
- there has been a default in the enactment of the terms of an order by one or more of the parties
As always, a court will need sufficient evidence to be able to consider if it should exercise its discretion to change the orders.
Future proofing agreements
Rather than potentially have to return to court to vary orders, it’s possible for you to formalise your agreements with your ex by drafting them in such a way that contemplates the expectation of change occurring and spells out what should happen if it does. For example, parenting orders often include a phrase “such further or alternate…as agreed between the parties”, which gives the parties some flexibility in changing arrangements if circumstances change.
If you think you’ll need to go to court to change your orders, you’ll need to give careful consideration of whether you are likely to meet the Rice & Aspland test threshold. If your application is dismissed, it could come with sting in the tail of being liable for the other party’s costs as well as your own.
If you need assistance with the process of applying to change orders, whether property or parenting, we can help. If you and your ex agree on the changes, we can help you with the process of obtaining consent orders. Or, if you can’t reach agreement with your ex, we can guide you through the process of filing an initiating application or represent you throughout the court process.
For family law help, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
