Making Changes to a Parenting Court Order

10 June 2020

By Sabrina Tan

Rice & Asplund continues to be one of the leading cases in the consideration of changes to parenting orders.

When the Court has made an order in parenting matters, there are certain criteria the Court must consider before deciding to make any changes.

In Rice & Asplund (1979), the Court made a final order for the 3 year old child to live with her father. Approximately 9 months later, the mother made an application to vary the order by seeking that the child live with her and spend specific time with the father.

The Full Court in this matter made it clear that the Court should not entertain proceedings to vary such an order lightly. The Court should consider whether:

  1. A subsequent change in the circumstances of either one of the parties or the child has occurred and this change makes it in the interests of the child for the Court to review the original order; or
  2. A factor has become known in relation to the welfare of the child that was not disclosed to the court at the original hearing.

Fast forward 40 years to 2019

In Phillips & Hansford (2019) FamCAFC 165, the Court revisited the application of Rice & Asplund so far as it applies to interim parenting orders where the orders are short-term and do not permanently or significantly change the original parenting orders.

In this case, final orders were made in 2015 that the parties have equal shared parental responsibility and the children spend equal time with each parent.

A series of events occurred over the following 3 years, predominantly concerning the children not wanting to live with their father (the father did not accept this and considered that their views were being manipulated by the mother).

The matter found its way back to Court in 2018 with the father seeking a recovery order for both children and the mother seeking to change the orders for both children to live with her and spend alternate weekends with the father.

The trial judge considered whether the 2015 parenting orders should be revisited and in doing so considered the principles outlined in Rice & Asplund and the general considerations under s60CC of the Family Law Act 1975. He subsequently made orders in terms of the mother’s application.

The father sought to appeal the orders on grounds that the trial judge erred by not firstly conducting a Rice & Asplund hearing to determine whether it was in the children’s best interests for the orders to be reconsidered. He also contended that the trial judge failed to have regard to certain considerations in s60CC.

The Full Court found that the trial judge did not err in failing to conduct a Rice & Asplund hearing before making interim orders which were considered to be a short-term variation of the original parenting orders. In doing so, the Court reiterated that the considerations outlined in Rice & Asplund were not necessarily matters for a preliminary determination but they are matters that the judge should consider in his or her reasons.

The rule in Rice and Asplund is not a fixed rule and should not disregard other considerations that are also in the children’s best interests. In Phillips & Hansford, it was accepted that the trial judge was concerned that the father’s insistence on the prior orders in the circumstances might undermine his relationship with the children. The primary judge found that a short-term variation of the orders, pending a full consideration of whether the orders should more generally be reconsidered, was in the children’s best interests.

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