As was set down in the case of Rice & Asplund (1979), if a parent wishes to vary final parenting Orders and the other parent does not agree, the parent wanting to change the Orders may bring an application to the Court.  The court will then give the parent leave to continue the application through the process if the Court is satisfied there has been a “significant change in circumstances”.

So, what constitutes a significant change in circumstance? Unfortunately, there is no clear determinant as to what constitutes a change in circumstance however, the court in Rice v Asplund recognised that changes would likely need to be of a serious nature.

These include but are not limited to:

• Either party seeking to relocate with the child or children
• An initial Final Parenting Order that failed to take into consideration all the circumstances of the case
• The current order being outdated and no longer reflective of the children’s circumstances
• A substantial period of time having elapsed since the Order was made
• Either party entering a new relationship or marriage
• Abuse of the child or children
• Either party or a child being in ill-health

Despite this determinant, it is important to note that just because something constitutes a change in circumstance, this does not mean that the Court will automatically allow a variation of the Court Orders to occur.

This is because there may be other factors that take precedence for example, the best interest of the child.

This was a principle that was central to the 2020 family law parenting case of Findlay & Reis.  In this case, the Court recognised the importance of taking into consideration in addition to a change in circumstance, the impact of litigation on the welfare of the child or children – and concluded that despite the time that had elapsed since the orders had been made and the desire of the children to reconnect with their father and his new stable relationship – these factors did not present enough of a benefit to the children that it would overcome the potential detriment that litigation would have on the children.

Considering the many factors taken into consideration in each unique case, our specialist family law team at Sanicki Lawyers can advise you on your prospects of success and provide you with the representation necessary for bringing forward an application for variation or with dealing with an application lodged by another party.

You can contact Stephanie Hope, Senior Associate Family Lawyer and Head of Family Law a Sanicki Lawyers for legal advice and representation today – on 03 9510 8999 or by email at [email protected]