How do you Change existing Child Custody and Contact Orders (Parenting Orders) in Australia?

As children grow older and relationships change, a previously made Court Order concerning the arrangements for the care of a child or children may no longer be appropriate.  However, the Court Order remains in force until one (or both) of the parties to the court order initiate legal action to legally change it.  If both agree, whilst it is possible to informally change the ongoing care arrangements for children without changing the court orders, it may lead to problems should someone later change his/her mind.  It is usually better to legally formalise child arrangements with court orders.

If one parent wants a change and the other does not, then both parties should make an attempt to resolve the dispute by attending a Family Dispute Resolution Practitioner who will provide some counselling and mediation.  If it is not possible to reach agreement though Family Dispute Resolution, then a Certificate pursuant to Section 60 I of the Family Law Act will be issued.  Unless you qualify for an exception (e.g. there is a threat of family violence, or there are urgent circumstances), you must have a Section 60 I Certificate before the Family Law Courts will allow you to initiate court proceedings to change Parenting Orders (previously called child Custody and Contact Orders).

There are special rules which apply to changing existing parenting orders.  Whilst a Family Law Court must always consider a child’s best interests as the paramount consideration, there is a requirement that there must be some changed circumstance to justify the serious step of re-opening an issue of with whom a child shall live- this is referred to as the Rule in the case of Rice and Asplund.  As a result, a court will be reticent to overturn a previous child custody order unless there is a significant change in circumstances.  Whilst there is no definite fixed time period which must elapse before a Court Application to change parenting orders can be made, it would be unusual to obtain a successful court outcome if the original court order was made within the past three to four years.

Before deciding whether to try to change existing children’s orders, it is best to seek advice from one of our experienced senior Family Lawyers at Melbourne Family Lawyers.

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