How to Vary Parenting Orders in Australia

When can parenting orders be changed?

Parenting orders are not permanent. Life changes — children grow, parents relocate, safety concerns emerge, and arrangements that once worked become unworkable. Australian family law recognises this reality, but imposes a deliberate threshold to prevent endless relitigation.

Since 6 May 2024, the process for varying final parenting orders is governed by section 65DAAA of the Family Law Act — a statutory codification of the long-standing principle from Rice v Asplund. Understanding this threshold is essential before filing any application.

There are three paths to changing parenting orders:

1. Consent variation — both parents agree. No threshold test is required. File consent orders for court approval.
2. Contested variation — parents disagree. Must satisfy the section 65DAAA two-stage threshold before the court rehears the matter.
3. Contravention (enforcement) — if the issue is non-compliance rather than the orders themselves, a contravention application under Part VII, Division 13A may be more appropriate.

The section 65DAAA threshold (Rice v Asplund)

In Rice & Asplund (1979) FLC 90-725, the Full Court held that courts "should not lightly entertain" applications to vary final parenting orders. There must be evidence of a significant change in circumstances. This protects children from the instability of repeated litigation and ensures finality in court proceedings.

From 6 May 2024, this principle is codified in section 65DAAA — a statutory two-stage test that the court must apply before reconsidering final parenting orders.

Stage 1 — s65DAAA(1)(a): significant change of circumstances

The court must evaluate the evidence and make findings of fact about whether there has been a significant change since the final orders were made. If no positive finding is made, that is the end of the inquiry — the court cannot proceed to Stage 2.

Stage 2 — s65DAAA(1)(b): best interests assessment

Even where a significant change is established, the court must separately be satisfied that reconsidering the orders is in the child's best interests. The court may consider: the reasons for the original orders, new material not previously available, the likelihood of a significantly different outcome, and any potential benefit or detriment to the child.

Recognised grounds for variation

There is no exhaustive list of what constitutes a "significant change." Courts assess each case individually. The following grounds are well-recognised in the case law as the kinds of significant change that can justify reconsidering final orders.

Child's developmental needs

As children grow, their needs change materially. Arrangements suitable for a toddler may be inappropriate for a school-age child or teenager. Courts recognise that the passage of time and developmental changes can constitute a significant change, particularly where educational needs have evolved, social or cultural attachments have developed in one location, or emotional and psychological needs have shifted significantly.

Safety concerns

Family violence, child abuse, neglect, or newly emerging risks (substance abuse, a new partner posing a risk) are among the strongest grounds. Under the 2024 amendments, safety is the first listed consideration in the new section 60CC best interests framework, reflecting its primacy.

Relocation

A decision by one parent to relocate — particularly interstate or overseas — that was not contemplated when the final orders were made is a well-established ground. Relocation can fundamentally alter the practicality of existing time arrangements. See our relocation guide for detail.

Non-compliance with existing orders

Persistent failure by one parent to comply with existing orders — withholding the child, failing to facilitate communication, breaching conditions — can constitute a significant change. Note that non-compliance is also addressed through contravention applications (Part VII, Division 13A), which is a separate enforcement mechanism. The appropriate remedy depends on the circumstances.

Child's own wishes

The child's views are one of the six considerations under the amended section 60CC. A material change in a child's expressed wishes — particularly an older child's — can support a variation application. There is no fixed age at which a child's views become determinative; the court assesses the child's maturity and capacity to form and express views. Under the 2024 amendments, an Independent Children's Lawyer must now meet with children aged 5 and over.

The application process

Contested variation follows a defined process. Here is each step and what it requires.

Step 1 — Family Dispute Resolution (mediation)

Under section 60I, you generally cannot apply to the court for parenting orders without first attempting Family Dispute Resolution (FDR) and obtaining a section 60I certificate from an accredited practitioner. This certificate is valid for 12 months.

Exemptions from the FDR requirement include:

• The application is made with the consent of all parties.
• Reasonable grounds to believe there has been family violence or child abuse.
• The application is urgent (e.g., risk of a child being removed from Australia).
• A party is unable to participate effectively due to incapacity, remoteness, or refusal to attend.

Step 2 — filing your application

Fee exemptions are available if you hold a Health Care Card, Pensioner Concession Card, Commonwealth Seniors Health Card, receive Youth Allowance/Austudy, have been granted Legal Aid, or can demonstrate financial hardship. Filing fees are adjusted annually on 1 July.

Step 3 — serving the other party

The application must generally be personally served on the other party (physically handed to them by someone other than the applicant). If personal service is not possible, you can apply for substituted service (by email, social media, SMS, or through a third party) or, in rare cases, dispensation of service.

Typical timeframes

Evidence you'll need

Your affidavit is the primary vehicle for presenting evidence. For a variation application, it must specifically address the section 65DAAA threshold — demonstrating both what has changed and why reconsidering the orders serves the child's best interests.

Your affidavit should address:

1. What has changed — specific facts establishing the significant change since the original orders.
2. When the change occurred — dates, timeline, and how the change affects the child.
3. Why the orders no longer serve the child's interests — connect the changed circumstances to the six section 60CC considerations.
4. Proposed alternative arrangements — specific, workable proposals and how they better serve the child.

Supporting documents include text messages, emails, and correspondence; school reports and medical records; a contemporaneous diary or log of events; and records of missed or disrupted parenting time.

Expert reports carry significant weight. Family consultant reports under section 62G are court-ordered independent assessments and are highly persuasive. Private expert reports from a psychologist or psychiatrist require leave of court and typically cost $3,000–$10,000 or more.

Consent variation: when both parents agree

If both parents agree to change the existing orders, a consent variation is significantly simpler, faster, and cheaper than contested proceedings. Under section 65DAAA(3), no threshold test is required.

Consent orders (recommended)

Consent orders carry the same legal force as contested orders, are fully enforceable, require no section 60I certificate, require no threshold test, and cost approximately $205 to file with a typical turnaround of 6–12 weeks and no court attendance.

Parenting plan (risks)

A parenting plan is not legally enforceable by the court. It can supersede existing court orders — creating a dangerous gap — and may render orders unenforceable with nothing enforceable to replace them. The other party can revert to the original orders at any time.

Consent orders process

1. Both parties draft proposed orders (legal advice recommended).
2. Complete the Application for Consent Orders and Minute of Consent Orders.
3. Each party signs the application and minutes.
4. File with the court (~$205 filing fee).
5. A judicial officer reviews on the papers — no court attendance required.
6. If satisfied the orders are in the child's best interests, the orders are made.

What it costs

Cost-saving strategies: agree where possible (consent orders cost a fraction of contested proceedings); use unbundled legal services (hire a lawyer for specific tasks rather than full representation); use free services such as court duty lawyers, community legal centres, and Legal Aid duty services; and use government-subsidised FDR.

Historical note: the s61DA presumption (repealed 6 May 2024)

Until 6 May 2024, section 61DA of the Family Law Act created a rebuttable presumption that it was in a child's best interests for parents to have equal shared parental responsibility. That presumption was repealed by the Family Law Amendment Act 2023 with effect from 6 May 2024. It no longer applies.

Under the law as it now stands, there is no presumption about shared parental responsibility. The court decides parental responsibility arrangements solely on what is in the child's best interests, having regard to the six considerations in the amended section 60CC.

If you have final orders made before 6 May 2024 that reflect the old s61DA presumption — for example, an equal shared parental responsibility order — those orders remain in force. However, any application to vary them will be assessed under the current law (no presumption), and the court will consider the child's best interests without applying s61DA.

Frequently asked questions