When people form a relationship, they engage in activities as partners which can include; having children, living together, pooling incomes, buying and selling property and getting married.

When these relationships go sour and there is a need to separate, the Family Law Act 1975¹ (“the Act”) can be of assistance. The Act provides direction and regulation for parties as to how to achieve a resolution beyond the conflict that can follow a separation. Often, this resolution is the making of family court orders, whether it be by consent or determined by the court.

Once final family court orders have been made they are intended by the court to be final, and to bring an end to all and any litigation.

Often, after family court orders have been made, people question “How can I change these orders?”

Where the change to an order is by consent, this change can be effected by drafting consent orders which are then lodged with the Family Court². Once lodged, the Family Court then makes those changes into a new order without the need for the parties to attend court.

When seeking to change final orders there may be a dispute between the parties. The first, and sometimes only, answer to the question “Can I change my final family court orders?” has to be; “Has there been a significant change in circumstances?”

One other important factor to be aware of is that there are no generic rights when applying for family court orders to be changed, varied or set aside in proceedings under the Act. Each application to change a final order is different. It is up to the court to exercise its discretion upon consideration of all the evidence on a case by case basis.

Parenting Orders

To be successful in making an application for a change in final parenting orders, as always, the best interests of the child is paramount to all considerations.

Therefore, the first step should be to try and make that change by consent, through mediation or other alternate dispute resolution process.

If change cannot be achieved by consent, to be successful in an application for a change to final parenting orders, a party must have evidence of extraordinary circumstances or special or significantly changed circumstances that result in the existing orders being unworkable and unrealistic.

Children are not static. Changes do occur. But not all changes require a change to parenting orders.

A common phrase found in parenting orders is “such further or alternate…as agreed between the parties”. This gives the parties to the order the power and flexibility to alter the arrangements as they see fit, as long as it is in the best interests of the child. This can be done informally from time to time, or on a more formal basis through the use of a written parenting plan.

When talking about changes to parenting orders, lawyers and courts will refer to a case called Rice and Asplund³ wherein it is stated that “…a court should not lightly entertain an application to reverse an earlier…order.” That there should be “circumstances which require the court to consider afresh how the welfare of the child should be best served.⁴”

The court adopts the view that if it were to allow orders to be varied simply because a child is growing up, the court would be inviting endless litigation. This is because change itself is an ever-present factor in life. The purpose of the rule in Rice and Asplund is to protect children from being exposed to ongoing litigation and endless uncertainty about their future.

There is no checkbox list of circumstances that give rise to being successful in an application for a change to final orders, but some examples are:

• relocation,
• change in the partnership or other living arrangements of a party,
• orders no longer reflecting the actual arrangements,
• abuse or family violence,
• changes in the health of a party or a child, and
• contravention of orders.

It’s important to remember that what might constitute a significant change in circumstances will depend upon the facts of each case.

Property Orders

The questions we encounter regarding final property orders are usually not so much how to change them, but how to enforce. Nevertheless, wanting to change final orders and asking “how” is a question that can arise.

There are very limited circumstances in which the court will approve a change to final property orders. This is due to the fact that orders are intended to in be full and final settlement of parties’ rights and entitlements to, what was a joint property pool.

It is important to note that the last step the court takes when making final property orders is considering whether they are ‘just and equitable under all the circumstances’.

Further, claiming lack of knowledge of rights won’t give rise to a special circumstance due to the fact that parties to property proceedings are deemed to know what their rights and entitlements are because they have to attest, at some point, that they have read and considered sections 72 and 79 and subsection 75(2) together with Part VIII of the Act⁵.

The limited circumstances that can give rise to a successful application to vary or set aside or change final property orders include:

• there has been such a significant change in circumstances since the making of the order that it is impossible to enact the terms,
• a miscarriage of justice by way of fraud, duress, suppression of evidence or other such circumstances, or
• there has been a default in the enactment of the terms of an order by one or more of the parties.

Even if such a circumstance arises, it is important to be aware that there must be sufficient evidence to present to the court so that it is able to determine if it should exercise its discretion and change the orders.

Summary

At the bottom of Family Law Court property orders there is usually a notation:

That it is the intention of the parties that these orders be in full and final settlement of their respective claims against the other for property settlement and/or spousal maintenance pursuant to Part VIII of the Act.⁶

Full and final means that the parties to the orders intend them to sever the financial relationship between them and not have to return to the adversary that is Family Law litigation.

In children’s matters the objective should be to settle, or to have ordered, suitable arrangements that are the least likely to lead to future litigation. As His Honour Chief Justice, as he was then, Evatt commented, the courts won’t lightly entertain an application to reverse an earlier order⁷.

How We Can Help

At Quinn & Scattini Lawyers we have a team of experienced family lawyers who can assist you to negotiate and reach agreement in relation to parenting and property matters and formalise those agreements in such a way that you will never need to ask “How do I change these final orders?”

However, if you do find yourself in a situation where you need to have that question answered, our expert family lawyers can meet with you for an initial consultation to discuss the issues and guide you in the right direction.

If there is a case in which consent is part of the proposed change, we can step you through the entire process of applying to change by filing a consent application with the court.

Alternatively, if no agreement can be reached between you and the other party as to the change/s, we can assist you by filing, for and on your behalf, an initiating application with the court and provide expert representation throughout the process.

¹or the Family Court Act 1997 (WA)
²Consent Order Applications can only be lodged with the Family Court
³In the Marriage of Rice and Asplund (1979) FLC 90-725; (1978) 6 FamLR 570
⁴At p 7
⁵or the equivalent sections of the Family Court Act 1997 (WA)
⁶or the Family Court Act 1997 (WA)
⁷ibid

Contact Us

Get the best representation. Contact Quinn & Scattini Lawyers’ experienced family lawyers on 1800 999 529, email mail@rmold.newwebsite.live or submit an enquiry below.

We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.