The Court can make a parenting order, and alternatively, it can also alter or discharge parenting orders pursuant to 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 the decision to vary a parenting order should not be made lightly, and without full consideration.
The Full Court of the Family Court in Rice v Asplund (1979) FLC 90-725, stated that varying a parenting order is something that should not be taken lightly and in such instances, the applicant must establish the threshold issue which mainly is, has a new factor or event concerning the child arisen, or, has there been a substantial change in the child’s circumstances since the last order was made. When considering the threshold issue, the Court must consider whether the new information about the child placed before it would lead to a different conclusion than the earlier order.
The decision to vary a parenting order will be made in accordance with 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 stop being in force in the following circumstances as outlined in ss 65H, 65J of the Act:
- 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 the de facto status of the child is to be determined, pursuant to s 65H(3) of the Act, the Court can make a declaration that the child is in, has entered into a de facto relationship;
- the child is adopted;
- the child has passed away.
What happens if the parent with whom the child is living dies?
If a parenting order provides that a child is to reside with one parent, and that parent dies, and the parenting order does not make provision for with whom the child is to live or spend time with upon the death of that parent, the surviving parent cannot compel the child to live with them (s65K of the Act). Pursuant to s65K(3) of the Act, the surviving parent or another person may apply for a parenting order that deals with whom the child will live.
Altering parenting orders can be a confronting process for both parent and child and is best handled with advice from a family law professional. One of our family law experts at Craddock Murray Neumann Lawyers can help you navigate this process.
For more information on how our Family Law team can assist you, please contact us at craddock@craddock.com.au
The law is complex and changes frequently. The law may have changed since publication of this article.