To change an existing Parenting Order, a significant change of circumstances needs to be established. The court needs to satisfy the threshold test before it can look behind the final order to consider whether the variation is in the child’s best interests.
The Threshold Test:
The decision in Rice v Asplund has established the ‘threshold test’. In this case, the Full Court of the Family Court decided that before it would review a Final Parenting Order, it would need to be satisfied that a substantial change in circumstances had occurred, or that important information had not been disclosed when the existing Orders were made.
The application of the test is closely connected with the nature and the degree of the change that is being sought. However, factors that may be considered:
- Time elapsed since date of final orders;
- A party seeking to relocate;
- New relationships of the parties;
- Change to the children’s wishes;
- Change to the health of a child or the other party.
A change an existing Parenting Order may also be achieved through a contravention application if court proceedings are filed alleging that another party has breached the orders.
Once a Contravention Application has been filed, the Court has the power to alter the Parenting Order to protect the best interests of the child named in the Order. A Parenting Orders may also be varied by consent (that is, both parties agree to vary the orders).