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11 December 2014

Is your parenting Order final?

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In a unanimous decision, the Full Court in Morton v Berry [2014] FamCAFC 208 remitted a parenting matter for rehearing before a Judge following an appeal against a first instance judgment where the a father’s application to vary a parenting Orders made by consent some 2 ½ years prior had been dismissed.

The Judge at first instance dismissed the application relying upon the principle in Rice and Asplund finding that there had been no significant change in circumstances between the making of the consent Order and the hearing.

The principle in Rice & Asplund and the cases following it recognises that repeated litigation over a child rarely promotes a child’s best interests.

In Morton and Berry the father gave evidence that the child had been expressing strong wishes to live with him over a prolonged period since the making of the initial order. In the original family report the child had not expressed wishes either way and the trial Judge dismissed the father’s application that a family report be undertaken to canvas the child’s wishes.

The Full Court determined that the trial Judge failed to take account of the child’s best interests as the paramount consideration.  The fact that no views had been expressed by the child in the family report that took place prior to the original order being made and that strong views were now being expressed by the child over a prolonged period amounted to a significant change in circumstances sufficient to warrant a revising of the case.

If you need more information or assistance contact one of our family law specialists.

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