Case Study: Reopening Final Parenting Orders Following a Significant Change in Circumstances

Final parenting orders made in the Federal Circuit and Family Court of Australia are intended to provide children and families with certainty and stability. This can create particularly complex legal issues where circumstances change significantly after those orders are made, and there are genuine concerns for the safety and welfare of a child.

Many people are unaware that, in certain circumstances, the Court has the power under section 65DAAA of the Family Law Act 1975 (Cth) to reconsider final parenting orders. The Court must first consider whether there has been a significant change of circumstances since the orders were made, and must be satisfied that reconsidering them is in the best interests of the child.

These powers are exercised cautiously. The Court must carefully balance the importance of finality and stability for children against its paramount obligation to ensure the safety and wellbeing of children.

Our office recently acted for a father in proceedings involving a child with significant additional and complex needs. This matter followed our successful application for a Final Family Violence Intervention Order, which we have discussed in a previous case study. Since final parenting orders had previously been made, there had been a substantial deterioration in circumstances.

The evidence demonstrated concerns regarding the mother, including alleged substance misuse, mental health concerns, unstable accommodation and her capacity to care for a highly vulnerable child requiring intensive, around-the-clock support. The child had also been living in supported respite accommodation.

As a result, our client sought orders discharging the existing final parenting orders under section 65DAAA and, in the interim, orders suspending parts of those arrangements.

Proceedings

Our office filed an Initiating Application in the Federal Circuit and Family Court of Australia. We relied upon evidence and submissions concerning the child’s circumstances since the final orders were made, including an emphasis that circumstances had changed substantially, requiring urgent consideration of the child’s living and care arrangements.

In the interim, we sought orders suspending various provisions of the existing orders, providing for the child to live with our client, restricting the mother’s time to professionally supervised visits and requiring her to undergo hair follicle testing.

These proceedings also intersected with concurrent Intervention Order proceedings in the Magistrates’ Court. An interim Intervention Order had been made protecting both our client and the child, and the Magistrates’ Court exercised its power under section 68R of the Family Law Act 1975 (Cth) to suspend the existing parenting orders. By the first return hearing in the Family Court, a Final Intervention Order was in place and the suspension continued.

Outcome

At the first return hearing, the Court made an order under section 65DAAA(3) permitting the final parenting orders to be reconsidered. Importantly, the Court noted that the previous orders were no longer appropriate.

The matter will now proceed so that the Court can determine the child’s longer-term parenting arrangements by reference to sections 60CA and 60CC of the Family Law Act 1975 (Cth), under which the best interests of the child are the paramount consideration.

In the meantime, our client and the child have had the reassurance of a Family Violence Intervention Order remaining in place to protect them.

Why this outcome was significant

Orders reopening final parenting orders are relatively uncommon.

Courts generally strive to preserve the stability that final orders provide. For that reason, the Court will only reconsider such orders where satisfied that it is in the best interests of the child to do so.

In this matter, the Court accepted that circumstances had changed significantly since the final orders were made. It also illustrates how the Magistrates’ Court and Family Court work together. The Magistrates’ Court can suspend existing parenting orders to provide immediate protection in the context of family violence, while the Family Court determines the longer-term arrangements.

The case demonstrates that while final parenting orders are intended to provide certainty, they are not necessarily permanent.

Our approach

Cases involving both Intervention Order proceedings and Family Court parenting orders require a thorough understanding of two separate legal jurisdictions and how they intersect.

Although every matter has its own set of circumstances, this case demonstrates the importance of strategic advocacy where there are genuine concerns for the safety of children and families.

By presenting the evidence comprehensively and addressing the interaction between the Magistrates’ Court and Family Court jurisdictions, our office was able to secure an outcome that allowed the existing final orders to be reconsidered while protective orders remained in place.

Contact us

If you are involved in both Family Court proceedings and Family Violence Intervention Order proceedings, it is important to obtain legal advice at an early stage. Please contact our office on (03) 8391 8411 to book a free 30-minute consultation with one of our solicitors.

Our experienced practitioners regularly appear in both jurisdictions and understand the complex interaction between parenting orders and family violence legislation.