If you are thinking about varying your existing parenting orders, it is important to first consider the legal principles surrounding whether or not a final order can be changed, and whether the Court would entertain such a change.
Rice v Asplund considered an application to vary existing parenting orders which concerned the living arrangements of the parties’ daughter.
The existing parenting orders stipulated that the child should live with the father and spend time with the mother. The mother subsequently applied to the Family Court to vary the order that had been in place for approximately nine months, seeking an order that the daughter live with her and spend time with the father. During the intervening period, the mother had re-married, sourced stable accommodation and the child was about to start school.
What was decided?
The mother’s application was successful because the Full Court of the Family Court decided that there had been a significant change in circumstances.
What are significant changes in circumstances?
As changes are an inevitable part of life, the Court will need to look at circumstances to see if they have changed significantly enough to warrant further litigation to vary existing parenting orders. This is because continuous litigation is generally not considered in the child’s best interests.
‘Significant changes’ in circumstances to warrant a variation may include:
- One party wishes to relocate the child/children
- Non-disclosure of material information at the time the existing orders were made
- Abuse of children
- The original orders are no longer reflective of the current arrangements for the children
- A substantial period of time has elapsed between the original orders and the new application
- Serious contravention of existing orders
The Rice v Asplund rule sets a high threshold of what constitutes a ‘significant change’ in circumstances to warrant an amendment to existing parenting orders.
Courts are generally reluctant to vary existing parenting orders, even if a significant change in circumstances exists. The Court will decide whether it is in your children’s best interest to entertain further litigation to vary existing parenting orders.
The principal has remained unchanged since 1979, and continues to be referred to and applied in family cases today.
This short article does not provide legal advice and should not be relied as such. If you need legal assistance, contact us.
 Rice v Asplund (1979) FLC 90-725.