Variation of parenting orders

Generally, a final parenting order applies to the relevant child until they turn 18 years of age. However, if the child is very young when the orders are made, in reality, as the child grows older and their needs change, the orders may no longer be in their best interests. This can be problematic if the original orders do not provide sufficient flexibility for the child into the future.

It is accepted that it is not in the best interests of the child for parties to constantly re-litigate issues in parenting proceedings. For this reason, the Court will not entertain an application to vary a final parenting order lightly. In what circumstances then, may a party to final parenting seek to vary or change those parenting orders? The case of Rice v Asplund (1978) addresses these questions. The principles in this case are commonly referred to as “the rule in Rice v Asplund”.

In Rice v Asplund, the Full Court of the Family Court determined that before it would review final parenting orders, it would first need to be satisfied that there had been a significant change in circumstances since the making of the orders. This is now referred to as the “threshold test”. Chief Justice Evatt said 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.”

To determine whether there has been a significant change of circumstances, the Court will consider the facts of each matter. There are no specific circumstances that will satisfy the rule, however the following examples will be relevant:

• A party is seeking to relocate with the child;
• The current Orders were made without all the relevant information having been made available to the Court;
• One or more of the parties has re-partnered or remarried;
• There has been abuse of the child; or

The Court may still be reluctant to vary final parenting orders, even if there has been a significant change in circumstances and the threshold test has been met. The Court will first need to consider what is in the best interests of the child and whether a variation of the Orders is desirable.

One option available to parties to reduce the potential for further litigation to vary parenting orders is to set out an agreement by the parties in relation to parenting matters by way of a Parenting Plan. A Parenting Plan should detail parenting arrangements, anticipate future events and should include a procedure to resolve future parenting disputes. It is important to note that a Parenting Plan does not constitute an order of the court. Although a Parenting Plan is not binding or enforceable, it will likely be afforded weight as evidence of the parties; intention and agreement at the time that it was entered into.

If you need to discuss your current parenting orders, please contact our office 8525 2700 to speak with one of our experienced Solicitors, alternatively you can request an appointment with one of our Family Law team by clicking here.

Article written by Kirstin Attard
Photo by A n v e s h on Unsplash