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Proving a change before biting the cherry again

One of the biggest difficulties when making parenting orders is that children – and their families – will continue to change.  So, when finalising orders we have to consider what may happen in the future.  This creates the risk that families will return to Court again and again, to change orders as their circumstances change – an outcome that causes uncertainty for children (and exposes them to continued conflict), causes financial and emotional burden on the parents, and strains the resources of the Court.

To overcome this risk, the law developed a principle, first enunciated in the case of Rice & Asplund, that says that parenting orders cannot be re-visited unless there has been a “material change in circumstances”.

When drafting parenting orders it is not uncommon for parents to indicate their intention – by way of a notation – to leave the door open for variation into the future, for example when a child starts school; however in a recent decision of Halloran & Keats, the Appeals Division of the Federal Circuit and Family Court, confirmed that parents cannot enter into orders to absolve them of the necessity to prove “a material change in circumstances”, and it is not within the power of the Court to make such an order. 

So while the circumstances of families and children will continue to change, the law remains clear that before you have a second bite of the cherry you will need to satisfy the Court that the change is material and the orders should be re-visited.

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