Application to Vary Orders

Understanding Applications to Vary

An Application to Vary is used to change existing parenting orders or other family law orders that are no longer working. Unlike starting fresh proceedings, you are asking the court to modify orders already in place — which means you must meet specific legal thresholds before the court will even consider your proposed changes.

Any party to the original orders can generally apply to vary them. In parenting matters, this typically means either parent. In some cases, grandparents or other significant persons may also seek to vary orders if they were party to the original proceedings.

Interim orders versus final orders — the critical difference

The type of orders you are seeking to vary dramatically affects your legal burden.

• Varying interim (temporary) orders: Made pending final determination. There is no Rice v Asplund requirement — you need to show why variation is in the child's interests pending the final hearing.
• Varying final orders: You must prove "significant change in circumstances" (Rice v Asplund / s65DAAA) before the court will consider merits. Fail this threshold and the application is dismissed.

When You Can Apply

The foundation of any successful application to vary final orders is demonstrating that circumstances have genuinely changed since the original orders were made. Courts require this to protect children from endless litigation.

Common reasons for variation applications

Child-related changes that courts consider include:

• Child getting older with different needs or wishes
• Starting school or changing schools
• New extracurricular activities or commitments
• Child's expressed preferences (especially older children)

Safety concerns that may justify variation:

• New evidence of family violence
• Drug or alcohol issues developing after orders were made
• Mental health deterioration in a parent
• Unsafe persons entering a household

Lifestyle changes that may qualify:

• Parent relocating (proposed or already moved)
• Significant change in work circumstances
• New partner or remarriage
• New children in household

Practical issues that may support variation:

• Orders proving unworkable in practice
• Ambiguity causing ongoing disputes
• Communication breakdown between parents
• Changed financial circumstances affecting arrangements

Section 60I certificate requirements

Just like an Initiating Application, you must generally attempt Family Dispute Resolution (FDR) before applying to vary parenting orders. You must provide either:

• Section 60I Certificate — from a registered Family Dispute Resolution Practitioner; or
• Exemption Affidavit — an Affidavit — Non-Filing of Family Dispute Resolution Certificate, claiming valid exemption.

Valid exemption grounds include:

• Matter is urgent — child at risk of harm
• Family violence or child abuse makes FDR inappropriate
• Other party is unable or unwilling to participate
• Parties are too far apart geographically

The Rice v Asplund Principles

Rice v Asplund (1979) FLC 90-725 established the fundamental principle that governs all applications to vary final parenting orders. Understanding and applying this test is essential to any successful variation application.

The core principle: "Before the court embarks upon the exercise of determining what arrangements are in the best interests of a child, there must be demonstrated a significant change in circumstances since the original orders were made."

This principle exists to protect:

• Stability for children — endless litigation harms children's wellbeing and development.
• Finality of orders — court orders must mean something; parties cannot endlessly relitigate.
• Judicial resources — prevents courts being clogged with repetitive applications.
• Prevention of tactical litigation — stops parties from using the court as a weapon.

The two-stage test

Stage one — the threshold test: Has there been a significant change in circumstances since the original orders were made? The change must be significant, not trivial. It must have occurred since the orders were made. You cannot rely on circumstances that existed at the time of the original orders. If you fail this stage, your application is dismissed — the court will not even consider your proposed new orders.

Stage two — the weighing exercise: Will the benefit of the proposed change outweigh the disruption to the child? The court weighs the benefits of proposed new arrangements against the disruption that change will cause to the child. A full best interests assessment under s60CC applies at this stage.

Section 65DAAA — the statutory codification

The Rice v Asplund principle is now codified in section 65DAAA of the Family Law Act 1975, introduced by the Family Law Amendment Act 2023. This gives the principle statutory force.

• The court must not reconsider final parenting orders unless satisfied that the change in circumstances is significant.
• The court must consider whether the benefit of making the variation outweighs any detriment to the child.
• This applies to final parenting orders, not interim orders.

Changes courts accept versus changes courts reject

Courts tend to accept changed circumstances where:

• Child is significantly older with mature, consistently-held views
• Parent has a genuine need to relocate for work that arose after the orders
• Evidence of harm was not available at the original trial
• There has been substantial deterioration in a parent's capacity

Courts tend to reject claimed changed circumstances that amount to:

• "I wasn't happy with the original decision"
• Minor inconveniences with current orders
• Re-arguing the same issues from the original trial
• "I have better evidence now" (if that evidence was available before)

Step-by-Step Filing Guide

Filing an application to vary requires careful preparation and attention to procedural requirements. Follow these steps to ensure your application is properly prepared.

Step 1 — Obtain current orders

Before drafting any documents, you need a complete copy of the current orders you want to vary. If you do not have them, request sealed copies from the court registry. Review them carefully to confirm whether they are interim or final orders, identify which specific orders you want changed, note when the orders were made, and record the file number.

Step 2 — Complete Family Dispute Resolution

Unless you have grounds for exemption, you must attempt FDR before filing. Contact a registered Family Dispute Resolution Practitioner. Certificate types that allow you to proceed include a certificate issued after attendance, a certificate noting the other party did not attend, or a certificate that FDR was inappropriate. If claiming exemption, prepare an Affidavit — Non-Filing of Family Dispute Resolution Certificate setting out your grounds.

Step 3 — Prepare your Application in a Case

Download the current Application in a Case from the Federal Circuit and Family Court website. This is the correct form for applications to vary — as distinct from the Initiating Application used to start proceedings. Key sections to complete:

• File number from original proceedings
• Identify which specific orders you seek to vary
• Set out proposed new orders in precise terms
• Reference your supporting affidavit

Step 4 — Draft your affidavit

Your affidavit must do the heavy lifting of proving changed circumstances. This is where your application succeeds or fails. It must clearly establish the changed circumstances and explain why variation is in the child's best interests. Structure it to cover:

1. When the original orders were made and what they provided.
2. What has changed since those orders — with specific dates and facts.
3. Why the change is significant (not trivial or foreseeable).
4. How the change affects the child's best interests.
5. What orders you seek and why they are better for the child.

Step 5 — Compile your filing bundle

Assemble all documents before attending the registry:

• Application in a Case (completed)
• Supporting Affidavit (sworn)
• Section 60I Certificate or Exemption Affidavit
• Notice of Risk (Form 11) — required for parenting matters
• Copy of existing orders
• Filing fee payment

Step 6 — File and serve

File via the Commonwealth Courts Portal or lodge at a court registry in person. Once filed, serve all documents on the other party at least 7 days before the hearing date, then file an Affidavit of Service as proof.

Evidence Required

The quality of your evidence often determines whether you pass the Rice v Asplund threshold.

Documentary evidence

• School reports showing the child's needs
• Medical reports or specialist assessments
• Employment contracts (for relocation cases)
• Correspondence showing changed circumstances

If safety concerns are involved

• Police reports or event numbers
• Protection order applications or orders
• Child protection notifications
• Medical evidence of harm

Relocation evidence

• Offer of employment at the new location
• Proposed arrangements for the child's time with the other parent
• Schools and facilities in the new area
• How the child's relationship with the other parent will be maintained

Child's wishes evidence

• Child's expressed views, carefully and honestly presented
• Evidence of maturity to form considered views
• Professional reports if available
• Request for a Family Report if needed

Common Mistakes to Avoid

Applications to vary have a high failure rate, often due to avoidable mistakes.

Threshold failures

• Not establishing changed circumstances: Simply arguing original orders were wrong does not satisfy the threshold.
• Relying on pre-existing circumstances: Changes must have occurred after the orders were made.
• Trivial changes: Minor inconveniences do not meet the threshold.
• Foreseeable changes: If the change was expected at the time orders were made, it is not "changed circumstances."

Procedural errors

• No s60I certificate: Without a certificate or valid exemption, the application is rejected.
• Wrong form: Using an Initiating Application instead of an Application in a Case.
• Missing Form 11: Notice of Risk is required for parenting matters.
• Improper service: Not serving documents correctly or within time.

Evidence failures

• Assertions without facts: "Things have changed" without specifics.
• No dates or details: Vague allegations without verifiable information.
• Emotional narrative: Complaints instead of factual evidence.
• Missing annexures: Referring to documents not attached.

Strategic errors

• Confusing vary with contravention: Different applications serve different purposes.
• Not addressing s60CC factors: The best interests test still applies at Stage 2.
• Seeking impossible orders: Orders the court has no power to make.
• Applying too soon: Before genuinely changed circumstances exist.

What Happens After Filing

After filing, your application is checked by the registry for compliance. If complete, it is allocated to the existing case file. If deficient, you will receive a deficiency notice. The court then allocates a hearing date — either a case management hearing or, for simpler matters, a determination hearing. Timeframes vary by court location and complexity.

Response from the other party

Once served, the other party has the opportunity to file a Response opposing or partially opposing your application. Their Response may include arguments that the threshold has not been met, their version of the changed circumstances, alternative proposals for orders, and their own evidence in affidavit form.

Possible outcomes

• Application granted: Court varies the orders as requested (or with modifications). New orders replace the relevant parts of the original orders.
• Partially granted: Court varies some orders but not others, or makes different orders than either party proposed.
• Application dismissed: Court finds no significant change in circumstances, or that variation is not in the child's best interests. Original orders remain in force.
• Consent orders: Parties reach agreement before hearing and submit consent orders. Court approves if in the child's best interests.

Realistic timeframes

Applications to vary typically take 3–24 months depending on complexity:

• Simple or consent: 1–3 months.
• Contested — standard: 6–12 months.
• Complex or requiring expert reports: 12–24+ months.

Common questions