If you are separated or divorced and you have children with your spouse or partner, then you’ve probably been involved parenting agreement discussions and trying to work out a parenting arrangement.
These are agreements between you and your ex-partner regarding how you will both continue to look after your children. Sometimes, you may be issued a legally recognised parenting order from the Family Law Courts which you both have to follow.
Here’s some more information about Parenting Orders and what to do if you wish to make changes.
What is a parenting order?
A parenting order is a set of official orders made by a Court regarding parenting arrangements for a child or children involved in a separation.
They are set in place until the child becomes an adult at 18 years old. However, over time, the needs and circumstances of the child can change – meaning that the orders may need to adapt or be varied at some point.
Children naturally develop over time, from infancy to young adulthood, which means that their needs are unique and highly individual. As a result, don’t expect the parenting orders to continue to remain the same over time.
Parenting orders will likely need to change at some point, to align with where your child will be developmentally, socially, and intellectually in the weeks, months and years ahead. The Family Law Courts recognise this.
So, why then have parenting orders?
Even though parenting orders may change at some point, they still have an important role to play to create a structure for your child, open communication between parents and reduce the risk of conflict between parents.
Having parenting orders means that there is a structured set of arrangements for your child put in place by the Court, enabling the parents to then structure their life around this and provide a routine and stability for their child. Parenting orders also provide an agreed framework for the parents to spend time with their children, which means that the risk of conflict or confusion is reduced.
How to change parenting orders
Sometimes, parenting orders may not always complement your schedule and can sometimes be highly impractical. If that is the case, you will need to seek legal advice around your options to vary the existing parental orders.
To change Parenting Orders, you may need to:
- confer with the other parent to try to come to an agreement
- consult a Family Dispute Resolution Practitioner to arrange a mediation
- engage a Family Report Writer or Parental Coordinator to assist in determining the best interests of the child
- commence court proceedings seeking orders to vary the existing parenting orders
What if parenting orders are breached?
Both parents should follow the parenting arrangements made by the Judge in the Court Orders, unless both parents agree in writing to change the arrangements set out in the Parenting Orders.
However, any action made by either parent that goes against the parenting agreement may have legal consequences. Serious ramifications for breaching the orders can include:
- fines
- make-up time
- community service
- participating in parenting programs
- jail time
- paying the legal costs of the other party and
- other consequences depending on the seriousness of the contravention.
Please, seek legal advice immediately if there has been a breach of your parenting orders by the other parent or you are considering breaching the orders for a specific reason or if you believe the existing parenting orders should be changed.
Family dispute resolution prior to changing parenting orders
If the other parent will not agree to change the existing parenting orders, your first option is to try family dispute resolution.
Family dispute resolution, also known as mediation, is an effective way to resolve the differences between you and your ex-partner before resorting to starting proceedings in the Family Law Courts – especially when emotions are running high and it’s hard to find a middle ground.
When is mediation (family dispute resolution) not appropriate?
There are some exceptions that may apply to participating in mediation prior to attending Court. This will bee assessed by your family dispute resolution practitioner (mediator).
These include:
- if there is an agreement and the parenting orders are by consent (i.e. both parents have agreed to make a new Parenting Order or amend an existing Parenting Order and wish to formalise the new agreement by Consent Orders)
- there are reasonable grounds to believe that there has been child abuse or family violence by a party or there is a risk of child abuse or family violence
- there are reasonable grounds to believe that a person has behaved in a way that shows a serious disregard for their obligations under the Order
- in circumstances of urgency; or
- one or both parents are unable to participate effectively in mediation.
What if you reach an agreement with family dispute resolution?
If you reach an agreement with your ex-partner in mediation, you can formalise this agreement in the form of a parenting plan or a parenting order. However, a parenting plan is not legally binding, as it is more of a general discussion between parents.
So, if you have been able to reach an agreement through mediation, you may wish to consider obtaining Parenting Orders by submitting an Application for Consent Orders to the Family Court. This way, the changes will be legally recognised and therefore, enforceable. In this circumstance, you may wish to also seek legal advice to oversee the new Consent Orders that are drafted.
If you are in the unfortunate situation where you have attended mediation and were unable to reach an agreement, you will need to consider your next option – commencing proceedings in Family Court.
Commencing proceedings in court to change parenting orders
Whether minor or major, any changes to Parenting Orders which have not been agreed will not be considered by a Court unless there has been a significant and substantial change in circumstances.
If a parent seeks to vary the Parenting Orders, they must satisfy the court that there has been a significant and substantial change in circumstances that warrant a variation of existing parenting orders.
Broadly speaking, there are two classes of change:
- The parent seeking to vary the existing Parenting Order is able to establish to the Court that there was a material fact that was not disclosed to the Court when the Parenting Orders was made, or
- The parent seeking to vary the existing Parenting Order is able to present evidence of new circumstances that have arisen since the making of the original Orders.
So, what is a significant and substantial change?
The Family Law Courts have accepted (in some cases) the following matters as being a significant and substantial change in circumstances such to allow the parents to reopen the proceedings and seek to vary the existing parenting orders:
- Where one or both parents failed to disclose domestic violence perpetrated by one parent against the other prior to the making of final parenting orders
- Significant opposing behavioural changes in a child
- Where a child has been diagnosed with a significant health issue since final Parenting Orders were made which required a level of care for the child that rendered the existing Parenting Orders impracticable
- Re-marriage of one or both parents where the re-married parent was able to provide stable accommodation and care for the child after having re-married
- Where one parent has relocated or wishes to relocate or
- Where one parent has contravened and/or continues to contravene final Parenting Orders.
It is important to remember that unless the court has approved to vary an existing order or both parents have mutually agreed, both parents must comply with the existing parenting orders.
Ultimately, it is at the discretion of the Court to vary existing Parenting Orders and the Court will only do so if it’s in the child’s best interest.
Changing family court oOrders
If you are considering varying your existing Parenting Orders or believe you may fall into one or more of the categories that allow Parenting Orders to be varied, you should seek legal advice.
One of our referral partners’ who is a suitably qualified lawyer should be able to tell you whether or not your circumstances satisfy the conditions.
