Dispute Final Orders: Understanding Changes in Family Law Legislation

KEY TAKE OUTS:

• Understanding Final Orders in Family Law
• Case Study: Rice and Asplund
• New ammendments to The Family Law Act and the implications of those updates

 

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Navigating the complexities of family law can be challenging, particularly when it comes to disputing final parenting orders. Due to recent amendments to the Family Law Act, there has been a surge in enquiries related to these changes, prompting us to provide a detailed explanation of what this means for you in relation to final parenting orders.

Understanding Final Orders in Family Law

Final orders in family law are legally binding decisions made by the court concerning issues such as child custody, property division, and spousal maintenance. These orders are intended to provide long-term solutions, ensuring stability and clarity for all parties involved. However, there are instances where circumstances change significantly, necessitating a reconsideration of these orders.

The Case Law: Rice and Asplund

The landmark case of Rice v Asplund (1979) 6 Fam LR 570 set a precedent in Australian family law regarding the variation of final parenting orders. The Full Court of the Family Court held that for final orders to be reconsidered, there must be a significant change in circumstances. This principle aims to prevent unnecessary litigation and ensure that final orders provide a stable and enduring resolution for families.

New Amendments

On 6 May 2024, amendments were made to the Family Law Act which included codifying the rule in Rice v Asplund. Under Section 65DAAA, the Court has the ability to reconsider final parenting orders if there has been a significant change in circumstances and it is in the best interest of the child for the final parenting order to be reconsidered.

 

What Constitutes a Significant Change?

A significant change, according to Rice v Asplund, must be substantial and not trivial. In determining whether there has been significant change in circumstances and it is in the best interests of the child for the final orders to be reconsidered, the Court may consider the following under Section 65DAAA(2):

1. The reasons for the final parenting order and the material on which it was based;
2. Whether there is any material available that was not available to the Court that made the final parenting order;
3. The likelihood that, if the final parenting order is reconsidered, the Court will make a new parenting order that affects the operation of the final parenting order in a significant way; and
4. Any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

Examples of significant changes that may warrant the reconsideration of final orders include:

• Change in Parental Circumstances: If a parent’s circumstances have changed dramatically, such as relocation, remarriage, or significant changes in employment status, it may impact the child’s welfare and necessitate a review of the final orders.
• Child’s Needs: Changes in the child’s needs, such as health issues, educational requirements, or behavioural problems, can also be considered significant changes.
• Risk of Harm: Any new evidence suggesting that the child is at risk of harm, whether physical, emotional, or psychological, can be a compelling reason to revisit final orders.

 

Ways to End or Void a Binding Financial Agreement

A BFA can come to an end in several different ways which include:

• Entering into a termination agreement;
• Entering into a subsequent BFA which includes provisions to end the original agreement; or
• Having a clause which makes the agreement condition upon an event.

A BFA can also be set aside or found to be void for several reasons. In order to set aside a BFA, an application must be made to the Court which shows evidence of any of the following:

• The agreement was obtained by fraud.
• There are circumstances that have arisen since the agreement was entered into that make it impracticable for the agreement or part of the agreement to be carried out.
• There has been a significant change in circumstances that will mean that a child will suffer hardship if the agreement is not set aside.
• That when entering into the agreement, one party entered into conduct that was unconscionable.

Practical Implications of the Update

For those seeking to dispute final orders, it is crucial to gather substantial evidence to support the claim of significant change. This process often involves:

1. Documenting Changes: Keeping thorough records of any changes in circumstances since the final orders were made. This may include medical reports, school records, and other relevant documents.

2. Legal Advice: Consulting with experienced family lawyers who can provide guidance on the likelihood of success and help prepare the necessary legal documents.

 

Challenges and Considerations

While the need for significant change is designed to ensure stability, it also poses challenges for those genuinely in need of revised orders. It is essential to approach the process with a clear understanding of the legal requirements and realistic expectations. The Court’s primary concern is always the best interests of the child, and any application to vary final orders will be closely scrutinised to ensure this standard is met.

 

How Coutts Lawyers & Conveyancers Can Help

At Coutts Lawyers & Conveyancers, we understand the emotional and practical complexities involved in disputing final orders. Our team of experienced family lawyers is dedicated to providing personalised and compassionate legal support. We can assist you in:

1. Evaluating Your Case: Assessing whether your circumstances meet the threshold for significant change.
2. Gathering Evidence: Helping you compile the necessary documentation to support your application.
3. Legal Representation: Representing you in court proceedings and mediations to advocate for your interests.

 

Conclusion

The recent updates in family law legislation, influenced by the principles of Rice v Asplund, underscore the importance of demonstrating significant change when disputing final parenting orders. This development aims to balance the need for stability with the flexibility to address genuine changes in circumstances. If you believe that your situation warrants a review of final orders, it is crucial to seek expert legal advice to navigate this complex process.

Contact Coutts Lawyers today to schedule a consultation with one of our experienced family law solicitors. We are here to provide the guidance and support you need during this challenging time.

Schedule an Appointment Now