Parenting Orders by the Court following a contested hearing or even resolved by agreement, are often said to be ‘Final Orders’. The Court has a clear principle that matters should be determined on a final basis, and there should be an end to litigation, however, there may be some cases in which it is necessary to revisit those Orders.
The case of Rice & Asplund establishes that before a parent can seek to set aside or vary a final parenting Order, they must establish that there has been a significant change of circumstances since the Orders were made that support the re-opening of those Orders.
Recent changes to the Family Law Act now include section 65DAAA, which provides that a Court must not reconsider final parenting Orders unless:
- the Court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
- the Court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
Whilst the legislation is relatively new, recent cases considering the new section seemingly suggest that it remains necessary that there is a significant change, and parties may face significant difficulties in varying Final Orders if there has been no significant change of circumstances.
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