·   ·  664 posts
  •  ·  3859 friends

MOTHER SEEKS TO VARY PARENTING ORDERS MADE BY CONSENT IN 2014

Haden & Nestor [2020] FCCA 638 (24 March 2020)

Mother seeks to vary parenting orders made by consent in 2014 contending that the passage of time has revealed issues which were not in the knowledge of parties when the orders were made. The father contends that the children will be at risk if further litigation continues.

Facts:

Ms Nestor (the mother) and Mr Haden (the father) are the parents of B, presently aged 12 years and C, presently aged  10years. On 30 May 2014, they entered into final parenting orders, by consent.

The mother now seeks to vary those parenting orders. The mother contends that the 2014 orders, varied as they were by Rees J, are no longer operating in the children’s best interests. She contends that the landscape, 6 years on, is very different in the following respects:

(1) B and C are now 6 years older. B is now in high school and C has now commenced school. The children have matured and developed; and

(2) The father now lives with his partner, Ms H and they have 2 children, who are siblings to B and C.

She contends that the passage of time has revealed issues which were not in the knowledge or the contemplation of the parties in 2014, namely:

(1) The parental conflict evident in 2014 continues; and

(2) Parental communication has deteriorated.

The mother contends that to dismiss her application for parenting orders will be to leave the children to struggle on against the reality of the inability of the parents to deal with and resolve their parenting disputes.

Issue: Should the court grant the order sought by the mother?

Law:

Analysis:

Even if the orders sought by the mother were to be made, it appears unlikely that they will, individually or in their totality, reduce the conflict between the parents significantly or at all. It appears unlikely that the orders proposed by the mother, individually or in totality will reduce the potential for further family law proceedings significantly or at all.

The process of embarking on a further round of parenting proceedings is one that comes with a risk to the children. The children are presently at risk of emotional, social and behavioural difficulties arising from their exposure to parental acrimony. Given that parental conflict appears inevitable,  the court considers that the risk to the children is likely to be exacerbated by further litigation.

In the event that the relief sought by the mother – if granted – was likely to reduce the parental conflict or to result in a set of orders that the parties could “live with” thereby avoiding future litigation, then the benefit to the children of a reduction in conflict may outweigh the detriment to them. Unfortunately, however, the evidence does not indicate that this is a likely outcome.

The court considers that the risk to the children arising from further litigation outweighs any benefit to them that might arise if the orders proposed by the mother were to be made.

Conclusion: The mother’s application be dismissed.

Comments (0)
Login or Join to comment.

FLAST

Close