SPS & PLS 2008 FamCAFC 16

A father appealed a parenting order and requested that two children aged 13 and 10 years spend more time with him.

The father objected that as a family assessment report had not been formally admitted as evidence, the judge had excluded information about the children’s views (child’s wishes) and about the assessor’s recommendations.  The report did not identify circumstances that had changed.

The appeal court considered that the interpretation of a test for changed circumstances had varied over time, as it was first applied to preliminary information provided on paper to assess whether there is sufficient change to embark on a new hearing, but a new practice is emerging of applying the test after evidence had been submitted in a full hearing in court.

The appeal was allowed, as the appeal court ruled that when there is an application for a change to a parenting order, the test of significant changed circumstances is an important test but not the primary test, as the primary test is the best interests of a child.