In theory, parenting orders are intended to be final and remain in place until the child turns 18 years of age. Yet we all know that parenting arrangements are not static and usually evolve as the children grow older and the parties’ circumstances change. How does family law approach this apparent dilemma?
When can I apply to change parenting orders?
In a previous blog post, we addressed the question of How Can I Change My Parenting Orders, and we saw that parenting orders can only be changed in one of three ways:
On appeal – within 28 days of the original order being made; or
By consent – when the other party agrees to the proposed changes; or
By application to the court – where there has been a significant change in circumstances.
Where there is no consent from the other party to the proposed changes, the remaining option is to rely on the grounds of a significant change in circumstances in an application to the court.
Significant change in circumstances
Key case: Rice v Asplund
The question of whether or not the Court will amend existing Orders was considered in the Full Court of the Family Court decision of Rice v Asplund (1979) FLC 90-725 where the Court was asked to amend existing final Orders.
Satisfying the threshold test in Rice v Asplund
In Rice v Asplund, the Full Court of the Family Court established a threshold test whereby it was determined that a parent is at liberty to apply to the court to amend existing final orders, however to do so they must satisfy the court that there has been a significant change in circumstances since the original orders were made which would give cause for any amendment to existing orders.
The Full Court also held that where application is made to alter an earlier order, particular factors requiring consideration include:
the length of time the child has been in a particular situation;
any earlier decision of the court and the reasons for that decision;
the possible advantages or disadvantages of a change in custody.
Assessing the merits of the application
Simply satisfying the court that the threshold test has been met does not mean that the court will set aside or vary the orders. The court will assess the merits of the application and the best interests of the child will be the paramount consideration.
But… the rule in Rice v Asplund is not absolute
It is important to note that the underlying basis for the court’s consideration is the best interests of the child and that the court is not confined to considering the principle in Rice v Asplund at a preliminary stage. And that furthermore, the rule in Rice v Asplund is not absolute: Reid & Lynch. More on this below.
Application of Rice v Asplund
Rice v Asplund has been cited, considered or applied by the Full Court and trial judges in many decisions. Here are some of the principles that have emerged as recently summarised by the trial judge in the case of Watson v Watson [2018] FCCA 1791:
The principle of res judicata does not apply to an order, including a consent order, with respect to the parenting of children: Reid & Lynch
The Full Court of the Family Court stated recently that parenting orders are interlocutory in nature: Granville & Blakeslee
Parenting applications are by nature, not strictly inter partes – the rights of children are at issue: M v M; CDJ v VAJ
The Court should not lightly entertain an application to alter a final parenting judgment. This constraint recognises that the important interests of children are unlikely to be served by frequent displacement or the uncertainty of prolonged or repetitive proceedings: Reid & Lynch
Nor is it in a child’s best interests to have repeated applications for custody or access – there must be an end to litigation: Searson v Searson
The adverse impact of repeated litigation may be seen as inimical to a child’s well-being and so contrary to their best interests: Freeman & Freeman
Enduring conflict between parents is itself harmful to children: Marsden & Winch
While s 65D(2) confers power to discharge, vary, suspend or revive a parenting order, the power is controlled by the overriding requirement in s 60CA to safeguard the best interests of the child as the paramount consideration: Reid & Lynch
To justify such a serious step, the applicant must establish that there is: (i) some changed circumstance, or; (ii) some new factor arising, or; (iii) some factor which was not disclosed at the earlier trial: Reid & Lynch
The substantive question is: are new facts or changed circumstances demonstrated which are sufficiently material to necessitate consideration whether the existing orders should be altered so that an investigation should be conducted to determine what orders will safeguard the children’s best interests? Freeman & Freeman; Bolitho v Cohen
However, as the passage of time will inevitably result in some changes to a family, the types of circumstance which may allow re-litigation of a final parenting order must be circumscribed: Marsden & Winch; O’Brien & O’Brien
The application of these principles will also be closely connected with the nature and degree of the change sought to be made to the earlier order (e.g. change in residence v. change in spend time arrangements): Marsden & Winch
Considerations acutely relevant to a child’s best interests could change, including by reference to the child’s age and level of maturity: Morton & Berry
The rule in Rice v Asplund is not absolute: Reid & Lynch.
For example, the rule will not impede an application for a small alteration (which may require only a short and narrow inquiry), yet may properly prevent a hearing for more far-reaching changes: Reid & Lynch applying Marsden & Winch.
Thus, in Granville & Blakeslee, the Full Court held in relation to special time that the rule could not conceivably operate against an application for special time.
The principles identified above upon application to vary final parenting orders must be applied to meet the circumstances of the case. To the extent that attempts have been made to question the principles in Rice v Asplund, the Full Court has affirmed that they are firmly entrenched: Poisat.
As should be apparent from the above principles, this is a complicated topic and legal advice should be sought.
Significant change in circumstances: the child’s views
Morton v Berry [2014] FamCAFC 208
This case involved a dispute over the parenting arrangements for a 10 year old girl. Consent orders had been made when the child was 7 years of age. Those orders provided for the child to live with (custody) the mother and spend time with (access) the father. At that time the child (via the Family Report) did not express a wish in relation to her living arrangements. The father filed an Application to the Court when the child was 10 years old on the basis that the child was now expressing a strong wish to live with him full time. The Court found that the issue of the child’s views was a significant change and that a new Family Report should be obtained to understand the child’s views.
Watson v Watson [2018] FCCA 1791
This recent case is another good example of the court attaching significant weight to the wishes expressed by the children, ages 15 and 13.5 years old and then exercising its discretion in light of what it considered to be the best interests of the children.
For advice on changing parenting orders, do not hesitate to contact Jano Family Law for a free, confidential consultation.