Variation of Parenting Orders
One of the greatest joys and challenges of being a parent is watching your child grow up. As your child matures, their needs and wants will grow with them. The parenting of a toddler and the parenting of a teenager is a vastly different experience, which can be made even more difficult when you are separated from the co-parent.
Therefore, it is unsurprising that many parenting orders made when the parties first separated become inefficient, unmanageable or inappropriate as the child grows older. Parties may also have re-married, had other children, moved homes and gone through all the other vagaries of life in that time. As such, parenting orders frequently need to be varied.
There are two ways in which parenting orders can be varied – that is by consent or by application to the court.
Consensual Variations of Parenting Orders
The court always encourages parents to reach parenting decisions by consent. If you and your co-parent are able to agree on the variation of the parenting orders, you can either sign a parenting plan or make an application to the court to vary the orders by consent. We can help you to codify the variations in a formal parenting plan or consent orders, to ensure that the wishes of you and your co-parent are accurately reflected in the agreement. Please call or email us to speak further about this option.
When You Do Not Agree
Unfortunately, there are many circumstances where you are simply not able to reach agreement with your co-parent about variations to the current arrangements. In fact, an inability to reach agreement is frequently the reason for why you are seeking a variation in the first place. In those situations, you will need to follow the same process as if you were applying to the Court again for the first time, except there is now an additional hurdle – you must prove that there has been a significant change in circumstances which makes the variation necessary. This is frequently called the rule in Rice v Asplund.
This case was initiated by the mother of a three-year-old child, who sought to vary parenting orders made nine months prior for the child to live with the father. The mother now sought for the child to live with her, and to spend time with the father instead. The mother’s application was ultimately successful.
What constitutes a significant change in circumstances?
The purpose of the rule in Rice v Asplund is to protect children from being exposed to ongoing litigation. It is important that the court not lightly entertain such an application, as it would invite endless litigation since change is an ever present factor in human affairs. Therefore, it is necessary to demonstrate a significant change in circumstances.
The court does not have a hard and fast rule as to what qualifies as a significant change in circumstances, and each case will turn on its own facts. However, from previous case law, we can observe that there are some situations where parties have a higher chance of meeting this threshold rule. This can include:
Where there has been abuse of the child;
Where one of the parties or the child are experiencing new medical issues;
Where one party is now seeking to relocate with the child;
Where previous orders were made without all relevant information being known or made available to the court;
Where a substantial period of time has elapsed;
Where a child has expressed views contrary to the current parenting arrangements;
Where one or more of the parties has re-partnered or remarried.
When coming to such a decision, the court has previously looked at the following factors:
The reasons for the earlier decision;
The likelihood of the orders being varied in a significant way as a result of a new hearing;
Any potential changes to existing orders must be weighed against the potential detriment to the child caused by the litigation itself.
The time elapsed since the making of the original order, and whether it was by consent or following a contested hearing.
It is important to note that it is not enough to just prove a significant change in circumstances. This is merely the first stage of the application – the hurdle that must be crossed before any variations can even be considered by the court. If you are successful in proving a significant change in circumstances, the court will proceed in the ordinary way and will only make variations that it considers to be in the best interests of the child. As such, the court may decline to make any variations at all even if the threshold test is met.
