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How hard is it to vary parenting orders?

By September 2, 2019February 23rd, 2024No Comments

How hard is it to vary parenting orders formalised by the court, even ones you made by consent? Well, it’s true that they can be formally changed again—but you’ll have to have a pretty good reason to be allowed to do so. That fact was reinforced again recently during an appeal heard by the Full Court of the Family Court at Brisbane. The matter explored the issue of what is meant by a “material change in circumstances”, in the parenting proceedings court-pseudonymised as Hadaway v Beckham.

Heard before Judges Ainslie-Wallance, Ryan and Austin, the case involved a set of parents in dispute over how to share parenting after their marital split. The parents had originally made consent orders for equal shared parental responsibility of their three year old, agreeing the child would live with mother and spend time with dad that would escalate towards “substantial and significant time”. A few years later, the dad decided to apply to set aside the consent orders and ask for a new regime for equal time and changes to primary custody.

The predictability of change

The father had attempted to change the original orders the grounds that things in his life had now changed. He had moved house, he had changed jobs, he had to commute for longer, and his relationship with his girlfriend had “evolved”.

But none of these reasons were considered material enough. For example, regarding the evolution of the father’s new romantic relationship, trial judge Justice Kent had dismissed this by agreeing with the mother that “it would be a surprising outcome if parenting orders were liable to be re-litigated every time one parent falls into or out of a new romantic relationship.”

The father had further contended that there was increasing tension between the exes that he argued interfered with them sharing parental responsibility. But the appeal judges agreed with the trial judge, saying this was operating on the “false premise that the ‘breakdown’ in the parties’ parenting relationship was a material change in circumstances”.

Justice Kent ruled that the changes in the father’s life, even if considered cumulatively, had not been “material” enough. The judge drew on the principles in a 1978 case known as Rice & Asplund, where it was noted that “change is an ever-present factor in human lives” and that you can’t therefore re-litigate constantly simply because of the fact that a change has taken place. Instead, the change must be truly material in nature to the point where orders are no longer workable.

Unfortunately for the dad, the appeal court agreed, his appeal was dismissed and he has to pay his ex’s court costs of over $16,000.

If you wish to vary parenting orders you already have in place with your ex about the care of your kids, and are wondering if your situation represents “a material change in circumstances”, give us a call to discuss your best way forward. We can also help if you are considering appealing a decision in the family courts. Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

You can find the new case here.


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