Final Parenting Orders
Final Parenting Orders, established within the Federal Circuit and Family Court of Australia (FCFOA), outline the long-term parenting arrangements for children, designed to be legally enforceable until the children reach the age of 18.
Final parenting orders conclude a matter without the need for any further court events such as interim orders.
These orders can be established through two methods: by a judicial officer at a final hearing after hearing evidence and submissions, or by way of consent if the parties involved agree to the proposed orders.
The primary goal of these orders is to establish a stable and secure parenting arrangement for the child or children involved.
Varying Final Parenting Orders
The Court is very reluctant to change final parenting orders. Generally, to vary these orders, parties must either come to a mutual agreement or seek a determination from the Federal Circuit and Family Court of Australia.
When parties disagree on changing the orders, the party requesting the variation must file an Initiating Application, providing supporting documents that outline the proposed changes and the significant change in circumstances that justify the alteration.
The court will only entertain a request to vary orders if it meets the Rice & Asplund threshold test.
The Rice & Asplund Threshold Test
The Rice & Asplund case set a crucial precedent for varying Final Parenting Orders. In this case, the court had initially issued orders that specified the child should live with the Father and spend time with the Mother.
However, approximately nine months later, the Mother sought to alter the orders to have the child live with her instead.
Her application was unsuccessful because the court deemed there was no “significant change in circumstances.”
The key takeaway from this case is that not all changes are substantial enough to warrant varying Final Parenting Orders. The change must be significant to meet the Rice & Asplund threshold test.
What Constitutes a Significant Change in Circumstances?
While the Rice & Asplund threshold test does not provide a specific list of circumstances that automatically satisfy it, there are several situations where parties may have a better chance of successfully varying Final Parenting Orders.
These include, but are not limited to:
- Where the child is exposed to an unacceptable risk under the existing orders.
- When it is in the best interests of the child or children to consider the application for variation.
- If a party wishes to relocate with a child or children.
- When the parties have agreed to a new parenting arrangement (e.g., a Parenting Plan) following the initial orders.
- If the initial Final Parenting Orders were made without complete information available for court consideration.
- When a significant amount of time has passed since the issuance of the original orders.
- Understanding Different Types of Orders in Family Law
Different types of Orders in family law
In family law proceedings in Australia, there are three main types of orders:
These are orders agreed upon by the parties and can be made without the need for a court hearing.
They are often preferred when parties can reach an agreement on parenting arrangements or financial settlements and wish to formalise their agreement into legally binding orders.
Consent orders carry the same legal weight as orders made by a judicial officer after a court hearing.
These are interim or temporary orders made by a judicial officer when urgent matters need to be addressed or certain issues require swift resolution.
Interim orders are in effect until final orders are made.
Final orders are made at the conclusion of a family law matter, bringing it to a close.
These orders establish the long-term parenting arrangements or property division, ensuring the well-being and security of the children involved.
Final Parenting Orders are designed to be final. However they can be varied when circumstances change significantly. It is essential to meet the Rice & Asplund threshold test and demonstrate that the proposed changes are in the best interests of the child.
Family law matters are complex, and parties seeking to vary existing orders should carefully assess their prospects of success before proceeding.
Please get in touch with our team to discuss potentially varying parenting orders or any other area of family law.
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