When it comes to parenting orders, “final” doesn’t always mean forever. While these orders aim to provide certainty and clarification on disputes, changes in circumstances can often open the door to modifications. However, the grounds for re-opening a case are limited and often involve significant changes or new evidence. In this article, Special Counsel, Annabel Murray explains the options available, whether by consent, through a parenting plan, or by court application, helping parents navigate adjustments to their care arrangements as their children grow and family dynamics evolve.
Understanding Final Parenting Orders and When They Can Be Changed
When the court makes an order – whether by the consent of parents or in a defended court proceeding, the orders it makes are final.
This is because they are intended to end the proceeding once and for all and to stop litigants re litigation issues that have been determined by the court.
A final order is useful in many instances to give certainty for the parties in the conclusion of the case.
It is difficult to re-open a case to discharge or vary order as the grounds to do so are confined very limited grounds including those giving rise to a miscarriage of justice or new evidence coming to light that was not known at the time the order was made and before the court and that new evidence is highly relevant or material to the case which evidence could not have been put before the court.
In the family law context often orders are made when the children are very young or where it was appropriate at the time that one parent’s time be limited due to the evidence at that time the order was made. A parent’s own circumstances may be change since the order was made such as no longer having to work interstate and now being more available to spend more time with the children.
What are the Options for Parents to Seek to Amend an Order?
By Consent
They can apply for an order by consent to vary or terminate earlier orders.
In doing so they need to provide details of the proposed changes; how those changes benefit the children and that the proposed care arrangement is in the child’s best interest and does not expose a child to any unacceptable risk.
A consent order is made by the Registrar of the Federal Circuit Court of Australia. They are assisted by having all relevant information in assessing that application.
By a Parenting Plan
A parenting plan is a contract between the parents setting out the care arrangements for the children. It must be dated and signed by each parent.
If parents enter into a parenting plan that deals with matters the subject of an earlier Final Order then the parenting plan has the effect of varying the Final Order.
Parents should take great care in entering into a parenting plan to avoid unintended consequences of:
- Overlapping and contradictory documented care arrangements;
- Parents being uncertain as to which document they should be guided by;
- Entering into new arrangements that expose a child to risk.
- Parenting orders are only made if the court is satisfied if the arrangements are safe arrangements.
- Some government departments may not accept the parenting plan and the order if it is unclear what a parent can or cannot apply for e.g. apply for a child’s passport on their own;
- Parents need to ensure that the Final Order did not include an order to prevent modification by a subsequent parenting order.
By Court Application.
As of 6 May 2024 section 65DAAA of the Family Law Act now states what elements of the application and evidence must be satisfied that:
- There has been a significant change of circumstance since the final parenting order was made; and;
- The court is satisfied in all the circumstances it is in the best interests of the child for the parenting order to be reconsidered including:
- Reasons why the order was first made and material before the court in which the order was based upon;
- If there was material not available to the court that made the final order;
- The likelihood that if the final order is reconsidered the court will make a new parenting order that affects the final order in a significant way;
- Any potential benefit or detriment for the child in reconsidering the order.
- The court would not open a final order for an additional night for example given the impact that the reopening of the case would have on the child.
How Ramsden Family Law Can Assist You
It is important for parents to carefully consider the best method for documenting care arrangements, taking into account the age and developmental stages of their children, as well as future changes in circumstances.
If you’re uncertain about how to navigate these decisions or need guidance on modifying existing orders, our experienced team at Ramsden Family Law is here to help you. Please contact us today to organise a confidential initial consultation with one of our lawyers.
Posted in: Latest News
September 13 2024
