Children are constantly evolving, developing and growing at varying stages of childhood and adolescence. They transition from preschool, to primary school, to high school; their friendship circles, interests and extracurricular activities may change; sometimes they may move to a different suburb, city or state. Change is a reality in a child’s life and studies show that people grow and develop more rapidly in their childhood than at any other point of life.
The rapid changes in a child’s life may cause difficulties when it comes to family law parenting matters. When parties are attempting to agree on parenting arrangements, it is very difficult to foresee changes that may occur 5, 10, or 15 years down the track. This can cause issues when parties have obtained court orders (by judgment or consent) regarding parenting arrangements, particularly for young children, and years down the track their circumstances have rapidly changed.
The Family Law Act 1975 (Cth) s 65D expressly authorises a court to “make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.” However, in doing so, the court must be satisfied that there has been a significant change in circumstances since the making of orders: Rice & Asplund (1979) FLC 90-725 (‘Rice & Asplund’). This significant or ‘material’ change is wide-ranging and may include a change in the child’s location, schooling, maturity, or personal views as to who they should live with. This depends on the circumstances and facts of each individual case.
In Rice & Asplund, the Full Court of the Family Court of Australia stated another reason there must be a significant change in order to overturn orders is that, “[The Court] should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs.” The court will not entertain applications where there has been a mere change in the ordinary course of life. The courts recognise that it is not in the best interests of children to have their parents or other interested persons making repeat applications to the court concerning their care arrangements: Elmi & Munro [2019] FamCAFC 138 (16 August 2019). The court’s overriding duty is to have regard to the best interests of the subject children and whether their changing situation permits overturning previous court orders.
As change is a reality in the lives of all children, there must be a significant change to warrant overturning orders. At Frank Law, we have significant experience in family law parenting matters. If you already have court orders that seem outdated, we can advise you as to whether the changes in your child’s life have been significant enough to warrant new court orders.
We offer a free first consultation where we can advise you and develop a strategy to obtain relevant parenting orders that are up-to-date and accord with your child’s best interests.
If you have further questions, please contact Matthew Sibley at msibley@franklaw.com.au
This is not legal advice.
Photo by Chayene Rafaela on Unsplash
