The Court will vary final parenting orders where there has been a significant change in circumstances of the child or the family, or if it would be in the best interests of the child. if the Court decides to re-open a matter, it will be a fresh proceeding, and the Court will make new Orders upon the hearing of the issues in dispute.
Rice & Asplund Test
The principle in Rice & Asplund applies primarily to applications to vary final parenting orders. Rice v Asplund is the matter, that dealt with the living arrangements for the parties’ daughter. The mother applied to vary the orders, seeking orders that the daughter lives with her and spend time with the father after she made significant changes in her circumstances.
Principles
Two broad categories of change may be relied upon to satisfy the Rule. First, the applicant may show some material factor that was not disclosed when the previous orders were made. Langham and Langham [1981] FamCA16. An example might involve non-disclosure by one parent of the other parent’s abusive behavior; family violence is a matter of importance when considering a child’s best interests. FLC ss60CC(2)(b). Relevant non-disclosure is more likely to be made out in cases where parenting orders were made by consent because there is a greater possibility of the Court being put in a position of not being made aware of all relevant matters
The rationale behind the rule
Chief Justice Evatt stated 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.”
The purpose of the rule Rice & Asplund is to protect children from being exposed to the uncertainty of ongoing litigation. It is the rationale that “continuous litigation over a child or children is generally not in their interests”: Langmeil & Grange [2013] FamCAFC 31 at [46].
Significant change of circumstance
The Court will consider the changes in circumstances together with the facts of the matter. The first step is to consider whether there is a prima facie case of changed circumstances, and the second is to consider whether the identified change in circumstances is sufficient to justify embarking on a hearing. Marsden & Winch at [58].
Examples of significant changes in circumstances are:
- A party is seeking to relocate with the children;
- The current orders were made without all the relevant information before the court;
- The parties have since consented to new parenting arrangements (e.g. entered into a parenting plan) and therefore, the current orders are no longer reflective of the actual arrangements for the children;
- A substantial period has elapsed between the final orders being made and the application being brought;
- One or more of the parties has re-partnered;
- There has been abuse of the children;
- A party to the proceedings or the child is in ill-health
Other examples are:
- Psychological and physical changes in children as they grow up;
- The child has matured and changed their views on the current parenting orders;
- A parent has, by their own choice, spent no time with the children for over a year;
- A parent’s employment has changed, and they can spend more time with their children; and
- The conflict between the parents has risen to the point where the current orders are unworkable.
Conclusion
Parenting orders are never final. It must always remain open to a court to vary existing parenting orders where the best interest of the child calls for it. The rule in Rice & Asplund operates to reject applications for variation unless a material change of circumstances is demonstrated that calls for a reassessment of the child’s best interests.
Speak to CFS Legal dedicated family lawyers in confidence about your parenting orders dispute. Book a FREE consultation. Email: info@cfslegal.com.au