When there are existing court orders about the care of children such order may only be varied by a Court, after a formal application has been made. This is true irrespective of whether the Orders were made by consent or following a defended Court hearing.
There are many reasons why a person who is concerned about the care and welfare of a child may seek to vary existing final orders about children (“parenting orders”). Some of the strongest arguments for variation are:
- If a party cannot reasonably comply with the Orders;
- If the Orders no longer reflect actual arrangements for a child. This could be, for example, where a Parenting Plan was agreed after the Order was made and the two documents are inconsistent. (A parenting plan is not a legally enforceable agreement, so it may not be sufficient in itself to prevent arguments over care of the subject child)
- Where the other carer is repeatedly failing to comply with the existing Orders, without reasonable excuse;
- If a parent wishes to move a long distance away with children;
- If the existing Orders were made without all the relevant information being put before the Court.
If a person wishes to vary existing children’s orders, he or she may formally ask the Court to review it. In the case of Rice v Asplund[1] decided over 30 years ago, the Full Court of the Family Court decided that before it would review a Final Parenting Order, it would need to be satisfied that a substantial change in circumstances had occurred, or that important information had not been disclosed when the existing Orders were made.
What might constitute a significant change in circumstances will depend on the facts of each case. The Court has been careful to point out that change is an ever present factor in life and needs to be of a serious nature to justify a review of Final Orders.
The decision in Rice v Asplund is considered to have established a ‘threshold test’ that must be satisfied before a Court can look behind Final Orders to consider whether the sought after variation is in the child’s best interests. The threshold test has been applied in numerous first instance and Full Court decisions[2].
The application of the threshold test is not applied uniformly between cases, and is closely connected with the nature of and degree of change that is being sought to the Final Parenting Order. If the test would impede the Court from considering an application for a small alteration, which will only require a short and narrow inquiry, it may not be applied at all. If however more far reaching changes are sought, the test is appropriately applied[3].
The Court may also consider varying Final Parenting Orders if Court proceedings are filed alleging that another party has breached the Orders (this is known as a Contravention Application).
Once a Contravention Application has been filed, the Court has the power to alter the Parenting Order irrespective of whether the alleged breach is proven, if the Court thinks that a variation of the Order is necessary to protect the best interests of the child named in the Order.
Persons seeking variations should also bear in mind that Parenting Orders may also be varied (informally) by consent. The possibility of mutual resolution of parenting issues should always be considered before more formal remedies are initiated.
For more information or to make an appointment in either our Canberra or Queanbeyan office, contact Carlos Turini 
e: cturini@elringtons.com.au | p: 02 6206 1300
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[1] In the marriage of RICE, M.A. and ASPLUND, C.J. (1979) FLC ¶90-72
[2] KING and FINNERAN (Formerly KING) (2001) FLC ¶93-079; SANDLER and KERRINGTON (2007) FLC ¶93-323; REID & LYNCH (2010) FLC ¶93-448
[3] MARSDEN v WINCH (2009) 42 FAM LR 1
