A common question asked by clients is whether they can bring their parenting Orders back to court if such Orders are not practically working or if either party is not satisfied with them.

The answer lies in the precedent case law contained in the matter of Rice & Asplund (1979) FLC 90-725 heard in the Full Court of the Family Court. This was an appeal made by the husband from previous proceedings with respect to final parenting Orders.

Rice & Asplund

The parties had a daughter and separated four years after her birth. The husband withheld the three-year-old daughter from the wife and shortly thereafter the wife commenced family law proceedings on 13 March 1975. The Court granted a sole parental responsibility Order to the husband, giving the wife access to spend time with the daughter.

The husband then brought further proceedings before the Court, to reduce the access that the Court had granted to the wife.

The wife then applied for sole parental responsibility and was successful in that Application. The court reversed the parenting arrangement, giving custody of the daughter to the wife with the husband having access.

The husband brought an appeal before the Full Court on the grounds that a prior final parenting order should not have been changed unless there had been a substantial change in circumstances; he argued that no such change in circumstances had occurred.

The mother contended that her remarriage and sourcing of stable accommodation for the child constituted sufficient change in circumstance.

Rice & Asplund sets down a high threshold in order for Parenting Orders to be varied; thereby preventing parties from bringing ongoing litigation and the accompanying stress imposed on the children by way of exacerbated parental conflicts. The effect of this case is that the onus is placed on an applicant who seeks variation of earlier parenting orders to satisfy the Court that there has been a sufficient change in circumstances to require the matter to be re-visited by the Court.

Case Law

In Jackson & Shea (2015) FAM CA 22, the court held that there was insufficient evidence to prove a significant change of circumstances that could justify the revisiting of existing Orders.

The father bringing this Application contended that he was not made aware of the existence of trust distributions in the original contested hearing and that constituted the change in circumstances to warrant the matter coming before the Court. The Court considered the impact of revisiting the Orders on the children.

Similarly, in Biggs &  Hurst (2014) FAM CA 217, the father bringing the Application relied on his rehabilitation in order to have the existing Orders revisited by the Court. The Court held that there was insufficient evidence to support such an Application. 

Can you bring an Interim Application if there are final Orders in place

The question then remains – does the above change of circumstance test (Rice & Asplund test) apply to interim proceedings as well as final proceedings; in other words, should interim Orders be made to vary final Orders if it has not yet been established that there is a significant change in circumstances.

In Cameron  & Brook (2018) Fam CA, the mother filed an application seeking interim and final Orders to apply that her daughter be allowed to study overseas in a school program; and seeking sole parental responsibility (to overturn final orders where parties had shared parental responsibility) in the event of the father not facilitating the overseas study. The Judge considered the mother’s fresh application for sole parental responsibility to be a “new question relating to an aspect of parental responsibility that was not at all in the contemplation of the parties at the time of the original consent Orders”.

Interim orders were made for the child to be allowed to make application for her overseas study as this was considered to be in the child’s best interests.

We see this issue arise in the case of Phllips & Hansford (2019) FAM CAFC 165 where an appeal was brought on the basis of the Judge making interim Orders without a prior hearing to determine whether in fact there was a change in circumstance.

In this case, final parenting Orders had been made. Two years later, the mother applied to the Court to reduce the father’s time with the children, which was unsuccessful. A subsequent issue arose between the parties which resulted in the mother filing an Initiating Application seeking to vary the original final Orders.

The Judge made interim Orders before conducting a Rice & Asplund test to establish whether a change in circumstance existed to warrant a revisiting of the final Orders. On appeal it was decided that making interim Orders prior to a hearing on whether or not a significant change exists was permissible.

The judgement stated that the children’s interests are paramount and that if making interim Orders is in the children’s best interests then they should be made even if this is “pending a full consideration of whether the orders should more generally be reconsidered”.

Change is a fact of life. However, in the realm of Family law, what we see is that Courts are reticent to change what has been agreed to or ordered.

At an interim level, we do see the Court’s entertaining and addressing issues at hand before considering whether or not a significant change in circumstance exists.  However, on a final basis, the common law has set a high threshold to protect the ongoing stability of children in separated families.

We see that change is possible but the evidentiary burden to prove the need for a change in Orders is scrutinised together with the nature of the circumstantial factor/s which an Applicant is relying on as a basis on which to seek that Orders be varied.

If you would like more information on how the Family Law Team at Genesis Edge Law Group can assist you in resolving your parenting disputes, please do not hesitate to contact us on 1300 559 888, or fill out the enquiry form here.