Changing parenting orders after separation: when can existing arrangements be reconsidered?

Parenting arrangements that worked when a child was very young may not continue to work in the same way as the child grows. A parent's circumstances may change, new information may become available or arrangements that once depended on cooperation may become difficult to maintain.

That does not mean an existing parenting order can simply be reopened whenever one parent wants something different. The law recognises both the importance of stability for children and the need to reconsider arrangements when circumstances justify it.

The first step is to understand what arrangements are currently in place and what has changed.

What kind of parenting arrangement do you have?

There is an important difference between an informal arrangement, a parenting plan and a parenting order.

An informal arrangement may be an agreement reached through conversations, messages or emails. Parents can often adjust those arrangements by agreement, provided doing so is safe and does not conflict with an existing order or another legal restriction.

A parenting plan is a written agreement made in accordance with the Family Law Act 1975 (Cth). It is not itself enforceable in the same way as a parenting order, although it may have legal significance and, in some circumstances, affect the operation of an existing order.

A parenting order is made by the Federal Circuit and Family Court of Australia and is legally binding. It may have been made after a contested hearing or by consent. The fact that an order was made by agreement does not mean it can later be disregarded simply because one parent has changed their mind.

If you are unsure which type of arrangement you have, obtain a copy of the relevant documents before deciding what needs to happen next.

Can parents agree to change an existing order?

Yes. Parents can often resolve proposed changes without contested proceedings.

Where all parties to the existing order agree, they may apply for new Consent Orders. The Federal Circuit and Family Court of Australia must still be satisfied that the proposed parenting arrangements are in the child's best interests.

In some circumstances, the parties may instead make a later parenting plan. However, a parenting plan and a new Court order are not the same thing. The effect of a parenting plan on existing orders depends on the legislation and the terms of the orders.

If the change is intended to be permanent or substantial, it is sensible to obtain advice about whether new Consent Orders should be made. This can reduce uncertainty about which arrangements apply and how they can be enforced.

What if one parent does not agree?

Where final parenting orders are already in force, a parent cannot ordinarily obtain a fresh determination simply by showing that they would now prefer a different arrangement.

Section 65DAAA of the Family Law Act 1975 (Cth) governs when final parenting orders may be reconsidered. In a contested application, there must first be a significant change of circumstances since the final parenting orders were made. If that threshold is established, the Federal Circuit and Family Court of Australia must then be satisfied that, in all the circumstances, it is in the child's best interests for the final orders to be reconsidered.

The legislation also allows the Federal Circuit and Family Court of Australia to consider matters such as the reasons for the original orders, the material on which they were based, information that was not previously available, the likelihood of a significant change to the orders and the potential benefit or detriment to the child.

The purpose is to avoid children being exposed to repeated litigation about arrangements that have already been determined, while allowing reconsideration where there is a proper basis for it.

What counts as a significant change of circumstances?

There is no single event that automatically satisfies the requirement.

Depending on the circumstances, relevant changes may involve a child's age and developmental needs, schooling, health, safety, a parent's capacity to care, relocation or a substantial change in how the existing arrangements operate.

A sustained breakdown in arrangements that previously depended on cooperation may also be relevant. So may important information that was not available when the earlier orders were made.

However, the existence of a change does not automatically mean the orders will be reconsidered or varied. The significance of the change must be assessed in the context of the particular child and the earlier orders.

For example, a child's commencement of school may be important where the existing arrangements were designed around the child's preschool years. In another matter, the original orders may already have anticipated schooling and provided arrangements intended to continue. The fact of starting school alone does not answer the question.

Similarly, a parent's change of employment or residence may be relevant but the practical effect on the child and the existing arrangements will matter.

What if the original orders were limited or intended to be reviewed?

The history of the original orders can be important.

Some parenting orders are made when children are very young or at a time when the parties expect to be able to agree on future arrangements. Others may contain limited provisions about time or communication, leaving substantial matters to be agreed later.

If that expected cooperation breaks down, the question is not simply whether one parent is dissatisfied. It is whether the circumstances now provide a proper basis for reconsideration.

The Federal Circuit and Family Court of Australia may consider the reasons for the original orders, the material available at the time and whether the current circumstances are materially different.

An order is not automatically invalid or open to reconsideration merely because it is brief, was made by consent or was intended to operate for a long period. Its wording, history and practical operation need to be examined.

What if the other parent is not following the orders?

A failure to comply with parenting orders can be serious but it does not automatically establish that the orders should be changed.

The appropriate response depends on what has happened and what outcome is required. In some circumstances, the issue may be addressed through communication, legal correspondence or family dispute resolution. In others, an application concerning compliance or enforcement may be appropriate.

Where the existing orders no longer reflect the child's circumstances, an application to vary them may also need to be considered.

These are different questions. An application to enforce an existing order is not the same as an application to change it.

If there are allegations of family violence, abuse or other safety concerns, those matters require particular care. A parent should not assume that an alleged breach or an allegation made by either party, automatically determines the appropriate parenting outcome.

What if the situation is urgent?

Some circumstances require prompt legal advice rather than waiting for ordinary negotiations to unfold.

Examples may include an immediate risk of harm to a child, a risk of abduction or another situation in which urgent protective orders may be required.

The Federal Circuit and Family Court of Australia has procedures for urgent parenting applications. The usual pre-action and family dispute resolution requirements are subject to exceptions, including relevant safety and urgency circumstances.

Urgency does not mean that every requested order will be made. The evidence, the orders sought and the child's best interests remain important.

Where there is immediate danger, contact emergency services.

Do you have to attend family dispute resolution first?

Generally, parties seeking parenting orders are expected to make a genuine effort to resolve their dispute, including attempting family dispute resolution, before commencing proceedings. A section 60I certificate is ordinarily required unless an exception applies.

The requirements are not absolute. Exceptions may apply in circumstances involving family violence, child abuse, urgency or other grounds provided by the legislation.

It is also important that dispute resolution be appropriate and safe. A person should not feel required to negotiate directly with the other parent where doing so would create a safety risk or breach an existing order.

Legal assistance can help identify the appropriate pathway, communicate proposed changes and prepare for dispute resolution where it is suitable.

What happens if the matter goes to Court?

If agreement cannot be reached, an application may be made to the Federal Circuit and Family Court of Australia.

Where final parenting orders are already in force, the reconsideration issue must be addressed. The Federal Circuit and Family Court of Australia may determine that the threshold is not met and decline to reopen the matter.

If reconsideration is permitted, that does not mean the applicant has already established that their proposed new arrangements should be made. The Federal Circuit and Family Court of Australia must still determine what parenting orders are in the child's best interests.

The process may involve evidence about the child's circumstances, the history of the arrangements, the matters said to have changed and the practical effect of the proposed orders.

Many matters can still resolve by agreement after proceedings commence.

A practical place to start

If you are considering a change to parenting arrangements, a useful starting point is to obtain advice about the existing arrangements and the changes you are seeking.

The initial priorities are generally to:

• Obtain copies of the current orders, parenting plans and any relevant written agreements.
• Identify what has changed since the final orders were made.
• Consider whether the existing orders anticipated those changes.
• Record the practical effect of the current arrangements on the child.
• Identify any relevant safety concerns or urgent issues.
• Consider whether agreement or family dispute resolution is appropriate.
• Obtain advice about whether the proposed change should be formalised by Consent Orders or requires another application.

The central question is not simply "Would I prefer different arrangements?" It is "What has changed, and why would reconsidering the existing arrangements be in my child's best interests?"