By Jennifer Zekirovska – Senior Associate
Separated parents will often seek to finalise parenting matters by way of Orders from the Court. This can be achieved by agreement between the parties, known as Consent Orders, or where an agreement cannot be reached, the Court will exercise their judicial discretion to make Final Parenting Orders.
In many instances, Parenting Orders are made when children are young. As family circumstances change and children grow older, you might find that the orders are no longer appropriate, suitable, or effective.
How can Orders be changed?
Parents can amend existing Parenting Orders by mutual agreement. Where parents cannot agree, they can file an application with the Federal Circuit and Family Court to seek new or revised Parenting Orders. In most cases, the parent applying for new Orders will first have to provide a certificate from a dispute resolution practitioner, stating that they have tried to resolve the matter through mediation/negotiation before commencing court proceedings.
A parent seeking to change the existing Parenting Orders must demonstrate to the Court that there has been a significant change in circumstances since the previous Orders were made, to warrant the Court reopening the proceedings.
What constitutes a significant change in circumstances?
The requirement to establish a significant change in circumstances arises from the Full Court decision in the case of Rice v Asplund (1979) FLC 90-725. In that case, the Court made it clear that a change alone is not sufficient for the Court to alter the existing orders. The change needs to be significant. This requirement has become known as the Rice and Asplund Rule.
The purpose of this Rule is to limit the effects of court litigation on families, specifically children, and to prevent endless litigation between warring parents.
There are no designated changes that immediately satisfy the Rule. Instances of significant change in circumstances vary from family to family. Each matter has different facts, and the Court ultimately determines whether the alleged change in any matter is sufficient to satisfy the Rule.
Some examples of changes that may satisfy the Rule (depending on the specific circumstances of the parents and children) include where:
- A parent is seeking to relocate with the child.
- A parent or the child is in ill-health.
- There has been an abuse of the child.
- The parents have implemented new parentings arrangements and therefore, the current Parenting Orders no longer reflect the actual arrangements for the child.
- The child has matured and expressed a desire to spend time with or live with a different parent.
- An employment position of a parent has significantly changed allowing them to spend more time with their child.
Assessing the merits of the application
Even if the significant change is proven, the Court will not necessarily agree to amend the existing Parenting Orders. The Court must still assess the merits of the application to change the existing Parenting Orders and will consider whether it is in the best interests of the child to change the Orders.
Conclusion
Applications to amend existing parenting orders are complex.
Before proceeding with an application, consideration must be given as to whether the Rule in Rice v Asplund will be satisfied – that is, whether has been a substantial change of circumstances since the original orders were made.
Even if the significant change is established, the Court will need to be satisfied that the change is in the child’s best interests, as that is the Court’s paramount consideration.
If you are contemplating making an application of this nature please contact us on 03 8672 5222 to arrange an appointment with one of our experienced family lawyers.
