Separated parents often seek to finalise the care arrangements of their children by way of orders. These orders can either be made by consent or by a judicial officer following a trial. There are certain situations which give rise to final parents orders being challenged and subsequently amended.
The case of Rice v Asplund established that to vary final parenting orders without consent there must be a material change in circumstances. This change may either be a new factor which has arisen since the final hearing or a material non-disclosure during the case (for example, family violence not disclosed). It may also be that a number of changes, whilst immaterial in isolation, when occurring altogether, are sufficient to be material.
The onus on establishing a material change is on the Applicant. Litigants must be mindful that the Family Court will not lightly entertain an application to vary final parenting orders. Endless litigation is not only a drain on the Court’s resources but also studies indicate it is detrimental to the psychological wellbeing of both litigants and their children.
For there to be a material change in circumstances, the change must be so significant that there is no doubt in the Court’s mind that litigation is necessary. The Court also needs to balance that up with the litigation and the best interests of the children.
Once a material change has been established, the care arrangements of a child are determined in the ordinary way.
Some of the more prevalent categories in which litigants typically apply to vary final parenting orders are child sexual abuse, relocation and serious ongoing parental conflict.
Sexual abuse goes to the very core of determining what is in the best interests of the child. Protecting a child from physical or psychological harm is a primary consideration of the Court and outweighs the importance of the child having a meaningful relationship with both parties.
In N v S, Justice Fogarty stated that “sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
An example of where child sexual abuse constituted a material change in circumstances was McL and McL. In this case, orders had been made for the eldest child to live with the father and the youngest child to live with the mother. Thereafter each party sought primary care of both children. Serious sexual abuse allegations were made against the father. Although the evidence was insufficient to establish the father had perpetrated such abuse, the circumstances were so suspicious that on the balance of probabilities, the father was deemed an unacceptable risk to the children. Therefore a material change in circumstances was deemed to have occurred to warrant the court to reconsider the children’s best interests.
Sexual allegations themselves however are not an automatic cause for a material change. In D and Y, orders were made for the father to be the primary carer of the child. When the child later made allegations the mother and her new partner performed satanic rituals, she made an application for his primary care. Her application was dismissed because the child’s claims were deemed baseless.
Relocation refers to a situation where one parent moves to another geographical location with a child which makes it difficult for the other parent to spend time with that child. Relocation is not its own distinct category of parenting case and it follows the same pathway as other parenting cases.
Generally, relocation will be a sufficient change given the correlation between relocation and the breakdown in the parent-child relationship which is tied to one of the primary considerations when determining what is in a child’s best interests.
Relocation does not need to have actually occurred for it to satisfy the material change test. In Fryda and Johnson, the mother who had primary care of the children advised the father that she intended to remarry and move to Japan. The impending and not actual move, was considered a material change.
In Radford and Alpe, the mother, who had primary care of the children, and her new partner, were permitted to temporarily reside in the US. They were permitted to stay there when her new partner secured employment there and the children had settled.
When we talk about relocation we typically think of moving states or overseas but that also includes intrastate travel. In D & M (unreported), care arrangements were based around the parties living a few minutes away. The fact the mother then moved an hour away was deemed a material change and the care arrangements were varied.
In circumstances where parties are already involved in Family Court proceedings, it can be difficult to prove parental conflict in and of itself is a material change. If parents were free from conflict, they would not be in the Family Court.
Parental conflict occurs on a continuum. At one end, parents disagree to a minimal degree. At the other end, there exists family violence to the extent the welfare of the children is effected.
Where parental conflict moves from disagreement to contravention of orders, new circumstances are created but they are not necessarily material. As was the view in S & J, the first step for redress in those circumstances is to bring enforcement proceedings.
Ongoing conflict between parties which impact on a child’s psychological welfare may constitute a material change. In CAC & CGH, Scarlett FM found the ongoing hostility between the parties remained constant and had the potential if not the actuality to cause emotionally difficult for the children.
In VDR & R (No 2), the father sought residence in the context of ongoing litigation and conflict between the parties and the mother sought the father have no contact with the child. The father was granted residence notwithstanding this altered an eight year status quo. The judicial officer found that if the child remained living with the mother and contact was continued, it appeared the mother would not embrace that concept, whereas if the child resided with the father, he would encourage contact between the child and the mother.
Passing of time
When determining what is in the best interests of the child, judicial officers are to consider whether it is preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.
If time alone were to substantiate a material change, there may be an influx of parents seeking to re-agitate proceedings after a period of time in an attempt to obtain more favourable parenting orders (i.e. have a second bite of the cherry). That would cause repeated, lengthy and costly litigation with is neither good for the court, the child or the parents.
The passing of time may however result in changes to any one of the factors which the Court is to consider when determining the child’s best interests.
One of the more obvious examples is the views expressed by the child and any factors relevant to weighing up the child’s views. In this regard, the views of an immature young child will not be taken into account whereas the views of a mature teenager will. It may be that an express desire of a mature teenager to alter their care arrangements is material enough to warrant a change.
Another more obvious answer is that typically infants spend shorter but more frequent periods of time with the non-resident parent, compared to non-infant children. Time and the practicalities of life create the need for a variation of those arrangements. To combat circumstances such as these, some judicial officers make orders for a limited duration with directions to review the order after a period of time.
The presence of the coronavirus is not, in and of itself, a material change. The effect of certain aspects of the coronavirus may however cause a material change, although these would not be permanent. By way of a few examples:
- orders for parents who live in separate countries will need to be suspended for the period of time in which those travel bans remain in place;
- where the child, one of the parents, or someone whom they have come into contact with, has contracted coronavirus, orders will need to be suspended until such time as it can be proven they no longer have the virus or are at a heightened risk of contracting same; and
- where it can be proved one of the parents is blatantly breaching government restrictions, orders may need to be suspended until such time as they are lifted.
If you require advice from one of our team, concerning parenting matters or any other matter arising from the breakdown of your relationship, call or email us now, 9322 8000 or firstname.lastname@example.org.