Under section 65D(2) of the Family Law Act 1975, a Court can make an order to discharge or vary a parenting order. A child custody lawyer will be able to inform you that despite this power, there was an important principle set out in the case of Rice & Asplund [1978] FamCA 84. This case ruled that a Court should avoid changing parenting arrangements unless there has been a significant change in circumstances or new material facts to justify such a “serious step”. Seeking advice from a child custody lawyer will help analyse the applicability of this test in the event that you may want to vary a prior parenting order.
To understand the Court’s position on the matter it is important to consider past judgements which have considered the nature of parenting orders. As well as the likelihood of changing their terms and the effect of change on the children.
In Freeman [1986] it was noted that stability is central to the lives of children and should be considered paramount. As an “essential prerequisite to their well-being” children involved in child custody matters can be placed under immense stress. Although a child custody lawyer can assist in providing insight to the legal avenues available, the threshold test in Rice & Asplund is something to consider.
Nonetheless, there have been cases where variation was granted. In the matter of Moron & Berry [2014] variation was granted as it was in line with the child’s wishes. Further, if an order is “entirely unworkable”, the rule in Rice & Asplund may be satisfied as was the case in Deakin & Parry [2008].
Whilst each case is unique and parenting orders are diversified and specific, some insight into the law can serve to inform you of some factors the Court may consider in the case of altering child custody arrangements. Seeking out a child custody lawyer will be beneficial to you and concerned parties in a family law dispute to ensure proceedings run with ease.
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Disclaimer
Family law situations can be complex and sometimes they can involve serious issues. Information outlined is proposed to provide general guidance only. Due to the seriousness of legal matters as well as the uniqueness of your individual situation, professional advice should be sought. For advice, please contact one of our Family Lawyers.
