Family court orders are made based on the circumstances that exist at the time. However, life changes, and arrangements that were appropriate when orders were made may no longer suit the needs of the parties or, importantly, the children. In such cases, it may be possible to apply to the court to have existing orders reviewed, varied, or set aside.
When Can Orders Be Changed?
The threshold for changing existing family court orders depends on the type of order:
- Parenting orders: To vary a final parenting order, you must demonstrate that there has been a significant change in circumstances since the original order was made. The court will then consider whether the proposed variation is in the best interests of the child.
- Property orders: Final property orders are much more difficult to change. The court can set aside a property order in limited circumstances, such as fraud, duress, impracticability, or a failure to disclose material information.
- Consent orders: Consent orders can be varied in the same way as other court orders, depending on whether they relate to parenting or property matters.
The requirement to demonstrate a significant change in circumstances for parenting orders exists to prevent repeated litigation and provide stability for children. Minor or foreseeable changes are unlikely to meet this threshold.
Examples of Changed Circumstances
The types of changes that may justify a variation of parenting orders include:
- A parent relocating to a different city or state
- A child reaching an age where their needs and preferences have substantially changed
- Concerns about a child's safety or welfare that have emerged since the orders were made
- A significant change in a parent's health, employment, or living situation
- One parent consistently failing to comply with the existing orders
- The child expressing strong wishes about their living arrangements (depending on their age and maturity)
The Process for Seeking a Review
- Obtain legal advice: Before filing, it is essential to assess whether your circumstances meet the threshold for variation. Your lawyer will review the existing orders and advise on the prospects of success.
- Attempt dispute resolution: Unless an exemption applies, you will generally need to attempt family dispute resolution before filing an application to vary parenting orders.
- File an application: An initiating application (or application in a case, if proceedings are still on foot) is filed with the court, supported by an affidavit setting out the changed circumstances and the orders sought.
- Court process: The application then follows the standard court pathway, including a first return hearing, possible mediation, and, if necessary, a final hearing.
"Existing orders are not necessarily permanent. When circumstances genuinely change, the court has the power to make new orders that better reflect the current reality."
How We Can Help
At Reid+Alexander Lawyers, we carefully assess whether a variation application is likely to succeed before recommending that path. We understand the legal thresholds involved and prepare compelling evidence to demonstrate why change is warranted. Whether you are seeking to vary orders or defending against an application for variation, we provide clear strategic advice.
If your circumstances have changed and your current orders are no longer appropriate, contact us to discuss your options.