Generally, the court is of the view that Final Court Orders are exactly what they are named after ‘Final’. Therefore the court is usually reluctant to easily entertain applications to ‘set aside’ a final court order. This includes Orders that are made by Consent (as agreed between the parents) or Orders made by a Judge.
However there are times when circumstances change or the best interests of the child would require that the final parenting orders be varied or set aside.
Some matters to consider for setting aside final parenting orders
There are several reasons a parent or legal of carer of a child who is concerned about the child’s care and welfare may seek to vary existing final parenting orders for the child. Some of the arguments in such circumstances are as follows:
- When there is a compelling prima facie case that circumstances relevant to co-parenting have changed
- If a party cannot reasonably comply with the Orders.
- If the Orders are no longer practical.
- The difficulties that had arisen in terms of compliance with the original orders.
- If the Orders no longer reflect actual arrangements for a child.
- When subsequent parenting plans made are inconsistent with the Orders.
- Where one of the parents or carers repeatedly and without reasonable justification fails to comply with the existing Orders, without reasonable excuse.
- If a parent wishes to move interstate or overseas with children.
- If the existing Orders were made without all the relevant information being put before the Court.
In many cases, final parenting orders are made when children are young. Due to the family and children’s needs and best interests as children grow up, it may be that the orders made when children were young may not be suitable or applicable as children grow older and family circumstances change.
If there are final Parenting Orders, a party seeking to change or vary these orders must demonstrate to the Court there has been a “significant change in circumstances” from those at the time the Final Orders were made, to warrant the Court re-opening the proceedings.
It is important to note that pre-existing issues which were raised or could have been raised at the time of the original final orders will not be enough to constitute a significant change of circumstance
In Rice v Asplund some 30 years ago a ‘threshold test’ was considered 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. It was held that the court would review a Final Parenting Order, if it is satisfied that a substantial change in circumstances had occurred, or that important information had not been disclosed when the existing Orders were made. That threshold test was also used in a more recent case in 2017 – Searson v Searson [2017] FamCAFC 119. It was held that a parent seeking to have parenting orders set aside or varied must establish that there has been a significant change in circumstance.
Parties can also always change their Final Orders by agreement.
If a party seeks to vary Final Orders and no agreement can be reached between the parties, an application must be made to the Court to change or vary final Parenting Orders.
What warrants parenting orders to be set aside or varied highly relies on the factual circumstances of each case.
Conclusion
Courts have an interest in avoiding costly and lengthy litigation. Opening parenting matters that have already been dealt with in court on a final basis is often considered to the detriment of the children. Inevitably there are situations where changes in circumstances mean that final parenting orders may no longer be appropriate or in the best interests of the children.
In applying for setting aside or varying parenting orders, one needs to show that there has been a significant change of circumstances that makes a change necessary.
It is important to note that in changing and existing a court order, the new proposed orders must consider the best interests of the child or children.
The existing final parenting orders may only be varied by a Court, after a formal application has been made for both final orders made by consent or by a judge.
If you have obtained final parenting orders and you seek to vary them or if you are in the process of obtaining final parenting orders, it is important to receive necessary legal advice to minimise the costs and stress of re-litigation at a later date. Feel free to contact our office to speak with one of our friendly solicitors today. Call our office on 02 9251 3611 or email us at enquiries@pavuklegal.com.
