Family LawChanging Parenting Orders Explained

July 24, 2020

Changing Final Parenting Orders and the rule in Rice v Asplund (1979)

Final Parenting Orders are Orders that outline the arrangements for a child or children on a final basis. These Orders can be made by the Court after a hearing or by consent if the parties can agree on terms.

But what happens if Orders made on a final basis are no longer appropriate? This was the issue that the Court was required to examined in the matter of Rice v Asplund (1979).

Background of the Matter

Rice v Asplund was a parenting matter which dealt with the three-year old daughter of a relationship. There were Final Orders made which outlined that the child was to live with the father. However, approximately nine months from the Orders being made, the Mother applied to the Court to vary the terms of this Order.

In making her application, the Mother argued that there had been a material change in circumstances since the making of the Orders. In particular, she argued that she had since stabilised her accommodation, had married, and that the child was about to commence schooling. The mother submitted that these changing circumstances meant that the Orders which were previously made no longer reflected the best interests of the child.

The Mother was successful in this application and the Court agreed to vary the Orders in accordance with the Mother’s application.

The Rule

In this matter, the Court determined that prior to reviewing final Orders it would first need to be satisfied that there had been a significant change in circumstances since the date that those Orders were made.

This has since become known as the rule of Rice v Asplund. However, it is important to note a couple of key stipulations with respect to this rule.

The first is that the change in circumstances must be significant for this rule to apply. It was noted by Chief Justice Evatt that the Court:

“…should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever-present factor in human affairs … there must be evidence of a significant change in circumstances.”

It is clear from these comments that not every change in circumstances will meet the necessary threshold to have final Orders re-examined by the Court.

The second key stipulation is that the Court will always consider whether re-examination of Orders is in the best interests of the Child before considering whether to allow an application under this rule.

This was recently seen in the matter of Phillips & Hansford (No 2) [2019], where the Court noted a concern that ‘unnecessary and protracted litigation was damaging the children’. It is clear from these comments that a significant change in circumstances will not warrant variation of Final Orders should such variation be contrary to the best interests of the children.

What Constitutes a Significant Change in Circumstances?

Simply put, there is no clear answer to this question. The Court will consider the change of circumstances together with the facts of each matter.

As noted above, it is not enough to simply show that there has been a change. The change needs to be serious enough to warrant a variation to protect the best interests of the child.

Some changes which have been successfully argued has been sufficiently significant include the following:

  1. A substantial period of time has elapsed since the Final Orders were made;
  2. There has been abuse of the child;
  3. A party has since remarried;
  4. The Court was not made aware of all relevant information at the time of making the original Order;
  5. The living situation of the parties has significantly changed; or
  6. A party is seeking to relocate with the child.

The Court is typically reluctant to vary Final Parenting Orders, and an application for variation of Orders can be extremely complex. If you are considering an application of this nature, it is important that you obtain legal advice at the earliest possible opportunity.

If you believe that your Orders are no longer in the best interests of the child, A.L.F. Lawyers can assist.

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