Changing or Varying Parenting Orders and The Rule in Rice & Asplund (1979) FLC 90-725

A final parenting order is a court order made by a family law court which details parenting arrangements for children who are below the age of 18. Parenting orders deal with parental responsibility for children, spend time arrangements and communication (previously known as custody, access and guardianship).


After final parenting orders are made, parents may seek to vary those orders. In the vast majority of circumstances, parenting orders can be varied by parents if they are in agreement. Where parents do not agree to vary parenting orders, then rules apply about whether a final parenting order can be varied or not.


While these rules may seem unfair, they are in place so that people do not continue to bring new family law court proceeding about issues that have already been decided upon on a final basis.


The source of the rules that apply when a parent wants to change final parenting orders can be found in both the court rules and in precedents which are previous decisions made by courts.


An important rule that has been established is that a final parenting order cannot be changed unless there is a significant change in circumstances. This change may be around a parent's circumstances or a child's circumstances. This rule was cemented in the family law case of Rice & Asplund (1979) FLC 90-725 which is outlined below and is often quoted by family lawyers.


Varying a Final Parenting Order - Court Rules

Court rules specifically provide that a Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

(a) it was made in the absence of a party; or

(b) it was obtained by fraud; or

(c) it is interlocutory; or

(d) it is an injunction or for the appointment of a receiver; or

(e) it does not reflect the intention of the Court; or

(f) the party in whose favour it was made consents; or

(g) there is a clerical mistake in the judgment or order; or

(h) there is an error arising in the judgment or order from an accidental slip or omission.


Varying a Final Parenting Order - The Rule in Rice and Asplund

An important precedent about varying final parenting orders was cemented in the case of Rice and Asplund (1979) FLC 90-725 which was heard in the Full Court of the Family Court, before Chief Justice Evatt, Senior Justice Pawley and Justice Fogarty. The matter was an appeal by the husband from previous proceedings with respect to final parenting orders for the parties' daughter.


Background

The parties married in November 1967, had a daughter on 1 December 1971 and separated on 16 February 1975. The husband withheld the then three year old daughter from the wife and shortly thereafter the wife commenced family law proceedings on 13 March 1975. From those proceedings, Judge Larkins made orders that the husband has custody of the daughter and the wife has access.


The husband then brought further family law proceedings before Judge Ross-Jones on 18 May 1976 seeking to reduce the access granted to the wife. On 23 June 1976, the wife applied for custody. The husband then applied for a divorce and a decree nisi (divorce order) was granted. The wife then married Mr Asplund in the same month.


Judge Ross-Jones gave Judgement on 5 May 1978 with orders stipulating that custody of the daughter was to the wife and that the husband has reasonable access. The husband appealed against the orders of Judge Ross-Jones to the Full Court of the Family Court.


Appeal

The husband appealed on the grounds that Judge Ross-Jones should not have changed a prior final parenting order unless there had been a substantial change in circumstances and that no change in circumstances occurred.


Counsel for the husband quoted the case of McManus (1969) 13 F.L.R 449, where a father applied to vary family law parenting consent orders. In that matter, Judge Selby stated:

A reversal of a decree would require the discharge of a particularly heavy onus... One would look for new facts and circumstances to be revealed before this onus would be discharged.

In the appeal court's judgement it stated in paragraph 7:

...the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs.

In the same paragraph, Her Honour Judge Evatt in her judgement went on to say that before a court changes an order the court would need to be:

  1. Satisfied that there is some change in circumstances which will justify such a serious step; or

  2. Some new factor arising or not disclosed at the previous hearing which would have been material.

Judge Evatt stated

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.

The Full Court ruled unanimously against the husband's appeal and that Judge Ross-Jones had approached the matter and had varied the previous final parenting orders correctly, stating:

[Judge Ross-Jones] approached the issue...on the basis of the need to establish a significant change. There is no error in this approach.

Judge Evatt stated that once a court is satisfied that a circumstance, new factor or undisclosed material factor gives justification to reconsider the welfare of the child then the court should consider the length of time the child has been in the situation, the earlier reasons and decision of a court including giving weight to any findings of fact made by that court, and then the court should follow the usual process when assessing the welfare of the child.

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