Can I change Final Orders if they no longer work for me and my family?
The law recognises that circumstances are subject to change, and what was once the best option for the family at the time of making the Final Orders may no longer apply. Where this occurs, an application must be made to the Family Court of Australia or to the Federal Circuit Court of Australia, to change the Final Orders.
A Final Order can be changed by one of two ways:
1. Consent Orders
Consent orders are a written agreement that is approved by the court and can be used to vary existing family law Final Orders. Where both parties agree to the change in Final Orders, they can make an application to the Family Court of Australia for consent orders reflecting the agreed change.
The consent orders must fall within the scope of orders which would likely have otherwise been made by the court under the circumstances.
2. By Order of the Court
Where no agreement can be reached between the parties, the party who wishes to change the Final Orders is required to file an application with the Family Court of Australia to review and vary the orders.
The court will not vary an existing Final Order unless satisfied that there is a significant change in circumstances that make the change necessary. When determining whether there is a significant change the court will consider new material placed before it, and whether the material would lead to a different conclusion.
As ongoing court proceedings are likely to impact on the child/ren of the proceeding, the significant change must to be enough to justify subjecting the child to further litigation. For example, the mental health of one of the parties could have declined dramatically since the time of the Final Orders which in turn affects the child’s safety.
Most importantly, when considering whether to vary the Final Orders the court will regard the best interests of the child as being the paramount consideration. The court will consider each case on its merits.
Where an agreement cannot be reached between the parties, the party who wishes to change the order follows the same process as if they were applying to the court for the first time by filing an:
- Initiating application;
- Affidavit in Support; and
- Notice of risk.
If you have Final Orders in place and want to change them, please speak to one of our skilled family law solicitors.