Can parenting orders be changed? A look at the rule in the case of Rice v Asplund [1978] FamCA 84

A final parenting order is made by the Court with the intention that it is to be applicable until a child turns 18.

However, it is often the case the circumstances change since the orders are made which cause the parenting orders to no longer be appropriate or workable.

If this is the case, what can you do?

If the requisite changed circumstances exist, you are able to apply to the Court seeking revised or different orders, as the Court is empowered to discharge, vary, suspend or revive some or all of an earlier parenting order pursuant to section 65D(2) of the Family Law Act 1975.

However, to persuade the Court to reconsider the current parenting orders one must first overcome the rule and threshold established by the case of Rice v Asplund [1978] FamCA 84.

This case related to the living arrangements of the parties’ young daughter. A Court had previously made orders that the child live with the Father. However, after 9 months or so, the Mother’s circumstances had changed and she brought an application seeking alternative orders. Ultimately, the Mother’s application was successful.

However, in that case, Evatt CJ stated that the Court should only hear an application to alter an earlier parenting order if the Court is satisfied that there is:

…some changed circumstance which would justify such a serious step, some new matter arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…[1]

The Court held that “change alone” will not be sufficient enough and further, the Court:

…Should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change is an ever present factor in human affairs…need to establish a significant change.[2]

This rule exists to reflect the general proposition that it is not in a child’s best interests to be exposed to further or continuing litigation.

So, what constitutes a significant change in circumstances?

There is no exhaustive list, and it is dependent on the particular facts and circumstances of each case, however some examples might include:

  • Where a parent seeks to relocate;
  • Parents have since entered into a parenting plan by consent so the original orders are no longer reflective of the present arrangements;
  • Abuse or family violence affecting the children;
  • A parent or the child is in ill health or has a medical condition;
  • The Court was not apprised of all relevant information at the time the original order was made;
  • Re-partnering or changes to household;
  • Substantial period of time has passed; and
  • Views of maturing children.

Where there are a number of changes asserted, the Court may also consider the cumulative effect of the changes (see also Jaynes & Rundle [2020] FamCAFC 292).

It is important to also note that if and when the Court is satisfied that the changed circumstances sufficiently justify a revisiting of the current parenting arrangements, then the question of what orders should be made instead will then be determined in the usual way, being in accordance with the factors listed in section 60CC of the Family Law Act 1975, guided by the paramount consideration of what is in the best interests of the child.

Therefore, if you feel as though significant changes to the circumstances that gave rise to your current parenting orders have occurred, or perhaps you are not sure and would like an opinion, please contact Family Focus Legal on (02) 4655 4224 and one of our lawyers will be happy to discuss this with you in your initial consultation.

[1] Rice v Asplund [1978] FamCA 84, [7].

[2] Ibid, [7] and [10].

Ready to take the first step towards peace of mind?

Get in touch with our compassionate team, and let’s
discuss how we can support you and your family.