When can a parenting order be varied or terminated?

Date: Mar 05, 2013
Document Type: Newsletter

The court has the ability to make a parenting order, and alternatively, they are also bestowed the power to alter or terminate such orders under the provisions of the Family Law Act 1975 (Cth)(the Act). An order to discharge, vary, suspend or revive some, or all of an earlier parenting order, is itself, a parenting order under ss64B(1)(b), 65D.

When can the court vary a parenting order?

There are no statutory provisions that explicitly outline when a parenting order can be varied, but such a consideration to vary a parenting order is a decision that should not be made easily, and without full consideration.

The Full Family Court in Rice v Asplund (1979) FLC 90-725, stated that varying a parenting order is something that should be taken lightly and in such instances, the applicant must establish the threshold issue which applies to either a new factor that has arisen, or there has been a change in circumstance. When considering the threshold issue, the court is to consider whether the new material placed before it would lead to a different conclusion.

The decision to vary a parenting order will be made in accordance to the nature and degree of the change, with the overriding consideration being the best interests of the child.

When does a parenting order come to an end?

Outside of child maintenance orders, parenting orders will cease upon the occurrence of a terminating event, as outlined in ss 65H, 65J of the Act. Any of the following terminating events will bring a parenting order to an end:

  • the child turning 18 years of age;
  • the child marrying under 18 years of age;
  • the child entering into a de facto relationship under 18 years of age. If confirmation of the de facto status of the child is required, under s 65H(3) of the Act, the court can make a declaration to such an effect that the child is in, or entering into a de facto relationship;
  • the child is adopted;
  • the child is dying.

What happens if the parent who the child is living with dies?

If a parenting order is in force requiring the child to reside with one parent, and that parent dies, yet, the parenting order does not make a provision for what is to happen to the child, the surviving parent cannot compel the child to live with them as stated in 65K of the Act. However, under s 65K(3) of the Act, the surviving parent or another person may apply for a parenting order that deals with the person or persons with whom the child will live.

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