Can I change my parenting Court order?
Setting aside or varying a final court order for your child’s is not as easy as you think. It’s a common question and it hinges on whether there has been a significant change in circumstances?
Final parenting orders are not made lightly. Under Australian law, there is an important precedent that comes from the case of “Rice & Asplund” which says, “where there has already been a final order in respect to parenting issues, before the court embarks on a re-hearing of those issues, the applicant must establish a significant change in circumstances”.
In other words, unless the parent seeking to change the order can show to the court any such “significant change”, it’s unlikely the orders will be set aside.
Example 1
In a recent case, a father had final parenting orders for his 10-year-old twin boys. He was awarded sole parental responsibility and that any time the mother spent with the children would be supervised, due to her ongoing mental health issues.
Eighteen months after the orders had been made, the mother applied to have the orders set aside, saying there had been changes in her mental health.
However, evidence was produced to show the mother had been “doctor shopping” to obtain medication, and that she had been “selective” in her disclosures to the court, and to her own psychologist.
Applying the rule of Rice & Asplund, the mother’s application was dismissed.
Example 2
In a second similar case, a mother applied for orders allowing her to spend time with her two children, who were living with their maternal grandparents.
Both children had been cared for by their grandparents since they were born, due to the mother’s significant substance abuse and mental health issues.
The mother told the court she had “turned her life around”.
However, she had not complied with earlier court orders and on a few occasions had tested positive for benzodiazepines, cannabis, and enzodiazepines.
She also admitted to sending an abusive message to the father of one of the children leading up to a previous court date.
Once again applying the rule of Rice & Asplund, the judge dismissed the mother’s application, and it was dismissed again on appeal.
The judge said it was “early days” for the mother’s progress and it would have been far better for the mother to continue her progress and return to court when that was completed.
These cases demonstrate the need for there to be real, and significant change on the part of the parent wishing to make any changes to final parenting orders.
If you need advice on parenting orders or any other family law issue, contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected] We’re here to help you through this time.
