22 May 2015
What happens if Final Parenting Orders made by the Family Court are not working for you, the other parent of your child or your child themselves? 
Final Orders can be varied by:
1. Consent (that is, both parties agree to vary the orders); or
2. By order of the Court.
Until such time as either the consent of both parents is given or an order of the Court is made, both parties are bound by the Final Orders. To obtain a subsequent order varying a final order, the party seeking the order must:
1. File an Application with an affidavit in support;
2. Persuade the Court that circumstances have changed significantly since the final orders were made, so as to justify variation of the final orders; and
3. Persuade the presiding judicial officer that varying the order is in the best interests of the child.
As with most matters in the Family Court, the decision to vary final parenting orders is ultimately at the discretion of the presiding judicial officer and decided with reference to the facts of each particular case. However, as key cases such as Rice v Asplund (1979) FLC 90-725 show, departing from a final order is not to be done lightly because:
1. Varying or “reopening” final orders has the potential to lead to “endless litigation”; and
2. Ongoing Court proceedings can and are likely to have a detrimental impact on the child or children at the centre of the proceedings.
So in what circumstances might the Court make such an order?
In the recent decision of Catterall v Catterall [2013] FMCAFAM 336, Federal Magistrate O’Sullivan considered an application by the Mother of the child to vary final parenting orders made by consent. The Mother’s position was that the time Father’s time with the child be significantly reduced. In support of her position, the Mother argued that due to a deterioration in the child’s health 
(unforseen at the time the final orders were made) and the geographical distance between the Mother and the Father, it was likely to be detrimental to the child to travel to spend time with the Father as prescribed in the final orders. The Magistrate agreed with the Mother and proceeded to vary the final orders on the following bases:
1. The child’s circumstances had significantly changed since the time the final orders were made;
2. The risk of “endless litigation” was outweighed by the need to vary the final orders; and
3. It was in the best interests of the child to vary the final orders.
In the matter of Biggs & Hurst [2014] FamCA 217, the Father made an interim application to vary final parenting orders.  Those Final Orders were essentially as follows:
a. The mother have sole parental responsibility for the children and that they live with her.
b. The father to spend time with the children conditional upon a number of factors, being:
i. For a period of 12 months of supervised time at [C] Contact Centre for a period of two hours in each alternate week, on a Saturday or Sunday, subject to the availability of the Centre.
ii. Within 12 months of the date of the orders, the father enrol, attend, and successfully complete a three month residential rehabilitation program at Ozcare at Cairns; and
iii. Within 12 months of the date of the orders, the father enrol, attend, and successfully complete the Parenting Orders Program and Focus on Kids Program offered by Relationships Australia Queensland.
The Final Orders stated that once the Father had satisfied ii and iii (above), he was to write to the Mother to advise her of same, and was required to provide documentary evidence from the various service providers that he had attended and successfully completed the relevant programs.  In the event that he failed to comply with ii and iii (above) within a period of 12 months, the Final Orders stated that the Father would thereafter see the children for two hours at [C] Contact Centre once every six months.
Just over 12 months after the Final Orders were made, the Father filed this variation application to discharge the Final Orders, and he sought instead that the parties have equal shared parental responsibility, and that the children live with the Mother and spend substantial and significant time with the Father.  By the time of the Interim Hearing the Father had significantly amended this application such that he sought that the order requiring him to attend a three month residential program be discharged, and that he spend time each second Saturday with the children.
This case involved domestic violence, alcohol addiction and mental health issues – all in relation to the Father.  In dismissing the Father’s application, the Court stated that it was not satisfied that there had been a material change in circumstances such to satisfy the test in Rice & Asplund and noted the following facts in support of that decision:
The change of circumstances claimed by the father is based, at least in part, upon his uncorroborated evidence that he has ceased consuming alcohol and that this has been the case since December 2011.
Over the same period the father’s broader abhorrent behaviour has continued. He engaged in behaviour which led to his imprisonment for four months in the first half of 2012. He breached a Family Violence Order in August or September 2012 and was sentenced to imprisonment, although that sentence was suspended upon the father entering into a bond of being of good behaviour. He then breached another order and was fined in March 2013.
The father has sent text messages which are in breach of a Family Violence Order.
If you are considering applying to vary Final Orders in relation to your children, you should seek expert advice from a family lawyer.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

100 years of Supporting West Australians

"My family law experience with Mary Roubos has restored my faith in solicitors in general. She not only demonstrated her legal expertise and flair, but also showed a compassionate and understanding nature during the lengthy process. I felt that Mary went above and beyond her obligations as my solicitor, and really listened to me. I would highly recommend Mary and her assistant Debra Wilson, who also demonstrated professionalism and excellence on all levels."

Renee Frangiosa

"Always fast and thorough service. Thank you"

Sitka Pil

"I found Ben most helpful and always prompt to let me know where things were at. Will definately use Ben again and will recommend to others."

Gerrit and Mary Van Bralal

"We wish to express our thanks for your help in attending to our mother/ wife's will - Mrs Grace Margaret Vessey. Aimee was extremely helpful and easy to deal with. We are greatful for your help with our affairs."

Ms Rosalyn Norman, Mr Stephen Vessey

"Thank you ever so much for all your hard work on my case Nicole, I really appreciate everything you did for me."

Workers Compensation Client

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"I highly recommend the services of HHG Legal Group for both personal and business needs. HHG is very up to date with legal advice and are in tune with the evolution of business."

Robert Forgione

"Sue and myself would like to thank HHG for the way in which our dispute was resolved. It is good to know that people who do not have an understanding of the legal system can rely on people like yourself and the company you represent. Without the assistance of HHG we could not have resolved the problems we were facing, not only have we resolved the issue but the outcome was more favourable then we would have thought possible. Thank-you and please pass on our thanks to all those who worked behind the scenes to achieve this outcome."

Rick and Sue Ashton

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years and most recently in 2013 and February 2014.  Business has included drawing up of wills for three generations and preparing of probate for my father in law.

I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"Anne Hurley has been such a valuable resource of information and advice, her wealth of knowledge is truly impressive and her ability to explain things in a way that makes them easily understood is very much appreciated. Anne and the wider HHG Legal Group are always a pleasure to work with."

Giorgia Parham

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly , professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first class service. Their professional advice has been invaluable to our company."

Carolin Grimm

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group have provided outstanding support as I have taken the journey of buying a business, their professionalism is beyound reproach. Their assistance throughout the Due Diligernce process have been invaluable, I would fully recommend them."

Mark Armitage

"I have experienced how good the HHG Legal Group team are over the last 6 years and highly recommend them."

Lyn Hawkins

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker