So you have Final Parenting Orders
Final Parenting Orders can come about in one of two ways: either the Family Court or the Federal Circuit Court have made Orders in relation to parenting either after a hearing or trial; or both parties have come to a mutual agreement and turned that agreement into Orders (Consent Orders).1
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
Final Orders are enforceable, and a Court can impose penalties for failing to comply with a parenting order, such as fines and imprisonment in extreme cases. Until and unless the Final Orders are changed, they impose a positive obligation on all parties to comply – mere acceptance will not be enough. All parties must take positive action to ensure the Orders are actually put into effect.
When can Final Orders be changed?
Sometimes the parenting arrangements set out in the Final Orders no are no longer appropriate for the children due to the passage of time or an unforseen circumstance. Unfortunately, changing parenting Orders is not a simple process. The Family Court and the Federal Circuit Court have the power to discharge existing parenting Orders, make new parenting Orders, or change existing parenting Orders.2 They will only do so where there has been some change in circumstances such that it is appropriate for the Court to re-examine the matter in order to serve the best interests of the child.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 Court’s ability to discharge, vary, suspend, or revive earlier parenting Orders is subject to the ‘Rule in Rice v Asplund’.5 Rice v Asplund6 is a case from 1979 which sets out the standard test for ascertaining whether or not a Final Order can be changed.
In this case, the parties were married in 1967 and separated 8 years later. They had one child together, born in 1971. Final Orders were made in October 1975 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.
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. The Full Court of the Family Court of Australia dismissed this appeal. They found that there had been a substantial change in circumstances, and further defined what a substantial change in circumstances means.
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 stabilised 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
A recent case – Mahoney & Dieter.27
Mahoney & Dieter concerned final parenting Orders 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 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 properly. 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,29 however, 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.
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 of Brisbane Family Lawyers on 3252 0011 or via our website.
- FCA / FCC Parenting Orders Fact Sheet
- Family Law Act 1975 (Cth), s 65D(2).
- Family Court of Australia – Applying to change an existing order
- Family Law Act 1975 (Cth), s 70NBA.
- Gorman & Huffman and Anor  FamCAFC 174, .
- Rice v Asplund (1979) FLC ¶90-725.
- Ibid – -.
- Marsden & Winch  FamCAFC 152, -; Miller & Harrington  FamCAFC 150, -.
- SPS and PLS  FamCAFC 16, .
- Marsden & Winch  FamCAFC 152, -; King & Finneran FamCA 344, 367; Langmeil & Grange  FamCAFC 31
-  FamCA 344.
- Langmeil & Grange  FamCAFC 31.
- Phillips & Hansford  FamCAFC 165, .
- Burton and Burton (1979) FLC ¶90-622 at p 78, 217.
- Houston andSedorkin (1979) FLC ¶90-699 at p 78, 732.
- Rice and Asplund (1979) FLC ¶90-725 at p 78, 906.
- F and N (1987) FLC ¶91-813 at p 76,136.
- Newling and Newling; Mole (Applicant) (1987) FLC ¶91-856 at p 76,467.
- Fryda and Johnson (1979) FLC ¶90-634; Searson & Searson (2017) FLC ¶93-788.
- Kulat & Azzarudin  FAMCAFC 97, .
- Brice v Brice  FAMCA 984, .
- Juliet v Jones  FAMCA 523  – 
- Mahoney & Dieter  FamCAFC 39, -.
- Ibid .
- Ibid .
- Ibid .
- Ibid .
- Ibid .
- Family Law Act 1975 (Cth), s 63C.
Family Law Act 1975 (Cth), s 70NBB