Variation of Parenting Order where applicant parent breaches the order

Case of Prewett & Mann [2013] FamCAFC 130 (27 August 2013)

Fowler J granted the mother’s application to vary a final parenting order, holding that there had been the necessary “significant change in circumstances”.

Mother was required by order to live in Sydney. She moved to the south of Sydney for financial reasons. Mother applied to the Court to vary the order to remain in the south of Sydney. Father contested this, arguing that the mother couldn’t apply to vary the order when she has been clearly disobeying it. The Court, and Full Court of the Family Court, rejected this. According to the Full Court:

“ . . . it was submitted by . . . the father that a party cannot disobey parenting orders and, because of the consequences of . . . her disobedience, have a court entertain an application to change those orders. We do not accept that there is a principle of general application in parenting cases to that effect. It is well settled that the court’s task . . . is to take steps with the child’s best interests as the paramount consideration. It follows that when evidence is presented which demonstrates that, for whatever reason, a child is in a difficult situation which [either parent] seeks to address, even if that parent, in disobedience of orders, created the circumstance under which the child suffers, the child needs the problem to be solved”.

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