Changing final parenting orders

So, you have Final Parenting Orders…

The Family Court and the Federal Circuit Court are two ways parties may get a Final Parenting Order. This can be either after a hearing or trial; or if both parties make a mutual agreement and turn it into Orders (Consent Orders).

Final Orders will likely set out who the child will live with, how much time the child will spend with each parent, and who has parental responsibility for the child. They may also include provisions outlining how the child will communicate with the parent they do not live with, and anything else relating to the care, welfare, or development of that child

A Court can impose penalties such as fines and imprisonment in extreme cases, for failing to comply with a parenting order. As Final Orders are enforceable by law, all parties have an obligation to comply until and unless the orders are changed. Therefore all parties must take positive action to ensure the Orders are actually put into effect.

When can Final Orders be changed?

Due to unforeseen circumstances or the passage of time, parenting arrangements set out in the Final Orders may not be appropriate for the children involved. It is however not a simple process to change the parenting orders and the power lies with the Family Court and the Federal Circuit Court to discharge existing orders, make new parenting orders or change existing ones..2 The Court will seek to serve the best interest of the child and they will only make changes if there has been a change in circumstances that requires the Court to re-examine the situation..3 The Court can also vary a Final Order where there has been an application brought before the Court for the contravention of that Order, regardless of whether or not the Court finds that a contravention has actually occurred.4

 What is Rice v Asplund?

The case of Rice v Asplund5in 1979 is a standard test for ascertaining whether or not a Final Order can be changed. This highlights the Courts ability to discharge, vary, suspend or revive earlier parenting Orders as highlighted in “Rule in Rice v Asplund”.

The Story

Sequence of events:

  • In 1967, the parties got married and were separated 8 years later.
  • In 1971, they had a child together and;
  • in October 1975, they filed for Final Orders after a contested hearing, stipulating that the child was to live with the father and spend time with the mother;
  • In May 1976 the father applied to the Court to have the mother’s time with the child reduced, and;
  • in June 1976 the mother applied to have the child live with her and spend time with the father;
  • These appeals were heard in August 1977 and;
  • judgement was given in May 1978. On appeal, the judge decided that the child was to live with the mother and spend time with the father;
  • The father appealed the judgement given in 1978, and this formed the basis of the 1979 case.

The Argument:

Essentially, the father argued that the mother’s appeal should not have been allowed, because there hadn’t been a substantial change in circumstances since the Final Orders were made in 1975. Following the dismissal of the appeal, The Full Court of the Family Court of Australia, found that there had been a substantial change in circumstances, and further defined what a substantial change in circumstances means.

The Outcome:

  • Evatt CJ in her judgement explained that in order for a change in circumstance to be enough to allow an appeal, it must be so substantial that it justifies a serious step away from the previous judgement/agreement – ‘it is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served’.7
  • The Full Court also explained that when deciding an appeal, the Court should take into account any earlier Order, the reasons for it, and the material on which the Order was based.
  • They highlighted that once it has been confirmed that there has been a substantial change in circumstances, the parenting matters will be determined in the ordinary way.

In this case, the fact that the mother had gotten re-married, and the fact that the child was about to start school were enough to satisfy the substantial change requirement.

How has Rice v Asplund been applied?

The Rice v Asplund rule has now been in operation for more than 40 years. It forms the threshold test to determine whether the Court will consider granting a variation of Final Orders. The principle has remained unchanged since 1979, and has been discussed and endorsed by numerous cases. It can be applied as a preliminary matter, or as a more comprehensive hearing.8 Where it is applied as a preliminary matter, it is a determination on the merits – there must be sufficient evidence to show there is a change of circumstance that will justify embarking on a hearing.9

What is most important in the application of the Rice v Asplund rule, is the determination that it is a manifestation of the best interests principle.10 As Collier J states in King & Finneran,11 ‘[t]o apply the test in Rice & Asplund is to make an assessment … as to whether or not the matters raised in [the] material make it necessary or proper in the best interests of the children … to allow further proceedings.’12

The Court acknowledges that continuous Court proceedings are generally not in the best interests of any child,13 and thus have ensured that the Rice v Asplund rule accounts for this.

Additionally, the Courts have clarified that the rule in Rice v Asplund is not an immutable rule – it does not trump other considerations that are also in the children’s best interests.14 As such, the Court can make short-term variations on Final Orders without conducting a full consideration of the Rice v Asplund rule.15

What counts as a ‘substantial change in circumstances’?

So far, the Courts have determined that the factors which can amount to a substantial change in circumstances include:

  • The use of bad language and “dirty expressions” by a child after spending time with one parent;16
  • A happy re-marriage and recovery from former mental problems by a mother with whom the child did not live;17
  • Re-marriage and stabilized accommodation by a mother with whom the child did not live, together with the child commencing school;18
  • Re-marriage enabling a parent with whom the child did not live to provide a warm family environment;19
  • Psychological and physical changes in children as they grow up;20
  • The parent with whom the children lived wants to relocate to another country or state with their new partner;21
  • The child has matured and changed their views on the current parenting orders;22
  • A parent has, by their own choice, spent no time with the children for over a year;23
  • A parent’s employment has changed, and they are able to spend more time with the children; and24
  • Conflict between the parents has risen to the point where the current orders are unworkable.25

While these examples shed some light into what constitutes a substantial change in circumstances, it is important to note that in many cases, a change in circumstances will only be substantial if the circumstance that has now changed formed the basis of the original judgement.26

 Another case – Mahoney & Dieter.27

The Story

  • Final parenting Orders were made in New Zealand in April 2017, which were registered in Australia.
  • These Orders provided that the child was to live with the father, and spend supervised time with the mother.
  • In September 2018, the mother appealed the Orders in the Family Court of Australia.
  • The primary judge decided to dismiss the appeal, as the Rice v Asplund rule was not satisfied – there was no substantial change in circumstances to warrant a re-consideration of the Orders.28

The Outcome:

  • The mother appealed this decision, and the Full Court of the Family Court of Australia (“FCFCA”) considered her appeal in March 2019.
  • The FCFCA held that the appeal should be dismissed, as the primary Judge had applied Rice v Asplund
  • They highlighted that the mother failed to show any change to the circumstances that the Final Orders were based on.
  • Her main argument for a change in circumstances was that her mental health had improved,29however, the FCFCA held that the primary Judge correctly asserted that this evidence didn’t change the effectiveness of the Final Orders, as they were not based on whether or not the mother had a mental illness.30

The FCFCA highlighted that where Rice v Asplund arises, the effective presumption is that the existing parenting Orders still reflect the best interests of the child.31 They explained that the Rice v Asplund rule is ‘merely a manifestation of the broader principle that the subject child’s best interests are the paramount consideration’.32

 In this case, the mother could not prove that there was a substantial change in circumstances such that the best interests of the child had changed.

Parenting Plans

The simplest way to change Final Parenting Orders is to enter into a subsequent Parenting Plan with the other parent. Parenting Plans do not go through the Court system. They are signed agreements which outline how the parents have agreed to manage some aspects of the children’s care, welfare, and development.33 Parenting Plans cannot create new legal obligations – they are not legally binding. They can, however, relieve you from obligations that may exist under a Final Parenting Order. The Courts can also look at a Parenting Plan if proceedings are brought against a party for a contravention of the original Final Order.34

While this article reflects the law as it stands, it does not replace specially tailored advice from a lawyer who knows all the facts of your matter. If you or someone you know wants to change Final Parenting Orders, or wants to enter into a Parenting Plan, please feel free to contact our team.

 

Footnotes

  1. FCA / FCC Parenting Orders Fact Sheet
  2. Family Law Act 1975 (Cth), s 65D(2).
  3. Family Court of Australia – Applying to change an existing order
  4. Family Law Act 1975 (Cth), s 70NBA.
  5. Gorman & Huffman and Anor[2016] FamCAFC 174, [291].
  6. Rice v Asplund (1979) FLC ¶90-725.
  7. Ibid – [78905]-[78906].
  8. Marsden & Winch [2009] FamCAFC 152, [46]-[47]; Miller & Harrington[2008] FamCAFC 150, [80]-[83].
  9. SPS and PLS[2008] FamCAFC 16, [81].
  10. Marsden & Winch [2009] FamCAFC 152, [46]-[47]; King & Finneran[2001] FamCA 344, 367; Langmeil & Grange[2013] FamCAFC 31
  11. [2001] FamCA 344.
  12. Ibid
  13. Langmeil & Grange[2013] FamCAFC 31.
  14. Phillips & Hansford [2019] FamCAFC 165,[34].
  15. Ibid
  16. Burton and Burton(1979) FLC ¶90-622 at p 78, 217.
  17. Houston andSedorkin(1979) FLC ¶90-699 at p 78, 732.
  18. Rice and Asplund(1979) FLC ¶90-725 at p 78, 906.
  19. F and N(1987) FLC ¶91-813 at p 76,136.
  20. Newling and Newling; Mole (Applicant)(1987) FLC ¶91-856 at p 76,467.
  21. Fryda and Johnson(1979) FLC ¶90-634; Searson & Searson(2017) FLC ¶93-788.
  22. Kulat & Azzarudin [2018] FAMCAFC 97, [21].
  23. Brice v Brice [2010] FAMCA 984, [49].
  24. Juliet v Jones [2010] FAMCA 523 [186] – [189]
  25. Ibid
  26. Mahoney & Dieter[2019] FamCAFC 39, [21]-[22].
  27. Ibid
  28. Ibid [4].
  29. Ibid [21].
  30. Ibid [22].
  31. Ibid [67].
  32. Ibid [25].
  33. Family Law Act 1975 (Cth), s 63C.

Family Law Act 1975 (Cth), s 70NBB