It is possible to change your Consent Orders however, the Court will need to be satisfied that there has been a ‘significant change of circumstances’ or ‘some material factor not disclosed’ which would justify ‘such a serious step’ to change the existing Orders.
This is known as the Rice v Asplund (1979o FLC 90-725 (link) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/1978/84.html?context=1;query=rice%20v%20asplund;mask_path= Threshold test.
Provided it is safe to do so and you are not breaching the conditions of a domestic and family violence protection order (if you have one), you firstly need to contact the other party (or parties) and discuss the types of changes you wish to make to the existing Order.
If you are successful in reaching an agreement you can file an Initiating Application in the Court with the proposed Minute of Orders where the Court will then consider whether to grant the Orders.
If other party is not agreeable to amending the Orders, the party wishing to vary the terms of the existing Orders would need to initiate a Family Dispute Resolution Conference where a Section 60I Certificate will be issued by the mediator where there is no agreement, which will be filed with the Initiating Application to show the Court that you have made every attempt to resolve the dispute without the intervention of the Court.
There are some circumstances where an application can be brought without the need for mediation, where there are reasonable grounds to believe that:
- There has been abuse of a child by one of the parties.
- There is a risk of abuse of a child if there were to be a delay in applying for an Order. An urgent / imminent risk of harm will be necessary.
- There has been family violence or there is a risk of family violence by one of the parties.
OR
The application is made in circumstances of urgency;
One of the parties is unable to participate effectively in mediation, for example, because of an incapacity, because the other person is overseas or because the other person is unable to be located in order to invite them to participate in the mediation process;
If you are filing an Application Contravention in relation to an Order that is less than 12 months old and there are reasonable grounds to believe that the person who has contravened the Order has behaved in a way that shows a serious disregard for his or her obligations under the Order.
If you are intending to initiate Court proceedings without a Section 60I Certificate, you must also file an Affidavit of Non-Filing Dispute Resolution Certificate, or explain in your Affidavit the reasons you are claiming an exemption from participating in mediation first.
Some parties prepare the avoid the stress and expenses of going back to Court and set out the terms of the new agreement in a Parenting Plan. Although not legally binding, a Parenting Plan sets out the intention of the parties at the time of entering into the Agreement, which can be considered at a later date should either party start the Court process again.
Remember, it is always best to firstly try to:
Discuss → Negotiate → If no agreement…go to Court!
