Varying “Final” Parenting Orders: Resolving A Dispute Between Parents with Equal Shared Parental Responsibility in Cameron & Brook (2018).

Background

The blog How “Final” Are Final Parenting Orders? (November 2017) considered the ruling in Rice & Asplund, concerning final parenting orders, and how “final” such orders may actually be. The Full Court of the Family Court recently had cause to consider the position in a differing set of circumstances where parents with equal shared parental responsibility were in dispute over the schooling of one of their children, in the case of Cameron & Brook.

Key Issues

The Full Court of the Family Court held in Rice & Asplund that unless a party can establish a substantial change in circumstances since an earlier parenting order was made, the matter should not be re-opened.

The rationale of the rule is to prevent children from becoming involved in ongoing litigation between feuding parents where the facts are still substantially the same. The courts also have an interest in avoiding continuing litigation as its resources are finite. As such, the court is generally reluctant to entertain applications to set aside final orders. However, there are some limited circumstances in which an order may be set aside or varied, for example, where there is a miscarriage of justice (involving false or suppressed evidence), or changed circumstances making it impractical or causing hardship if the order were to be carried out. Each case should be considered on an individual basis. Factors that may be taken into account include the time elapsed since the date of the final orders; if a party is seeking to relocate; any new relationships of the parties; a change to a child’s wishes; or a change to the health of the child or parent.

Key Facts in Cameron & Brook (2018)

The parents had entered into Consent Orders in 2015 which provided for parental responsibility being equally shared between them. The Orders also included a dispute resolution assistant to help resolve disputes regarding parenting and the assistance of a Family Dispute Resolution Practitioner prior to commencing proceedings in a court. Nonetheless, the parents could not agree on an issue involving one of their children who wished to apply for a student exchange program.

The child, aged 14, attended a school that participated in an overseas student exchange program which would mean if selected, the child attending a school in one of three overseas countries for a period between 4 and 8 weeks. The mother wished to authorise the child's participation, but the father disagreed saying the girl was not sufficiently mature. The exchange would occur when she was 15 years of age.

The mother’s application to the Federal Circuit Court sought an Order that the child be permitted to participate in the exchange program and that she and the father sign all the necessary documents to facilitate the child’s participation. The mother sought to assume sole responsibility in respect of the exchange program.

The mother’s application came before Judge Coates, on an urgent basis, as the selection interviews in respect of the exchange program were to commence shortly. His Honour dismissed the mother’s application on the basis that the court lacked the power to make orders in the terms sought. The situation was analogous to that of Rice & Asplund with insufficient change to justify the issuing of new parenting orders.

On appeal, the Full Court held that, although parental responsibility was the subject of an existing order, the Court had both jurisdiction and power to determine a question if the parties could not agree between themselves. The Full Court was not persuaded that the situation was analogous with Rice & Asplund as there was “no attempt to reagitate issues previously agitated”, but rather it involved a new question relating to an aspect of parental responsibility that was not contemplated by the parties at the time of the Consent Orders.

The Court determined that, notwithstanding "equal shared parental responsibility, the mother shall have sole authority and responsibility for authorising the participation of the child in the process of the selection for inclusion in the exchange program at the school". The Full Court observed that Final Orders made in relation to children are not final in the same way as Orders made concerning a property settlement. Court intervention may be required where previously unforeseen circumstances arise. It was considered that it was in the best interests of the child to apply for the exchange program. The appeal was allowed, and an Order made that the mother have sole responsibility for enrolment in the program.

What Does It Mean?

Final parenting orders are sometimes not quite final as in certain cases the parties can request the court to change arrangements, provided there has been a “significant” change in circumstances. This flexibility can be justified if it is in the best interests of the child or children.

The decision in Cameron & Brook determined that the principles outlined in Rice & Asplund do not apply in cases which involve an issue of parental responsibility which has not previously been dealt with.

If seeking a change to parenting orders, it is preferable for the parties to try and negotiate the change before taking the matter to court. If no agreement can be reached, then the party proposing the change will need to file an application to vary the existing orders. If the court is persuaded there is a significant change in circumstances the arrangements will be determined with the best interests of the child(ren) in mind. Either way, specialist advice and support are essential.

Contact Our Expert Family Lawyers in Sydney, NSW

If you have final parenting orders in place and wish to vary them because of changed circumstances, you should seek specialised legal advice from experienced family lawyers.

Szabo & Associates Solicitors can provide expert advice on the wide range of family law matters including child support and custody, spousal maintenance and all aspects of divorce and separation. Please call us on 02 9158 6026 or complete our online contact form.