Australia: Are final parenting orders really final? When can parenting orders be changed?

Last Updated: 19 September 2017
Article by Alison Ross and Leeann Murphy

It is not uncommon for separated parents to seek to finalise parenting arrangements by way of orders issued by the Court. Those orders can be made by agreement (consent orders) or can be the subject of a final decision by the Court. However, circumstances of families and the needs of their children change. As children grow, so does their ability to have input into their care arrangements. Often, parenting orders are made when children are young, and while parents may have done their best to make these arrangements suit their family into the future, changes to the family's circumstances may result in the need for parents to revisit the arrangement at a later time.

If "final" parenting orders are in place, then how can they be changed?

Importantly, parenting orders can always be changed by agreement between the parties to those orders. However, if there is no agreement about what changes can be made, an application to the Court is required.

As a general rule, parents who have final parenting orders (whether originally entered into by agreement or after a Court determination) are required to sufficiently establish a significant change in circumstances from those that existed at the time the original parenting order was made, in order to warrant the Court re-visiting the matter.

This principle is commonly referred to as the rule in Rice & Asplund, a 1979 decision of the Full Court. This rule was most recently considered by the Full Court in the decision of Searson & Searson [2017] FamCAFC 119. In that case, the Full Court of the Family Court of Australia considered the extent to which circumstances need to have changed in order for the Court to reconsider a parenting matter.

In this case, the mother made an application to the Court to vary final parenting orders that had been made 15 months prior. The mother's application sought orders that would permit her to relocate with her three children from Melbourne (where she, the father and their children had resided prior to separation and at the time the original orders were made) to south-east Queensland, to live with her partner and improve her financial position. The husband opposed the application, on the basis that the mother was in a relationship with her partner at the time of the original trial. Given that her partner resided in south- east Queensland at that time, there had been no sufficient change in her circumstances. The father also argued that the mother was in "dire" financial circumstances at the time of the trial and her current "dire" circumstances did not represent a change in circumstances.

The mother rejected this, stating that while she was in a committed relationship with her partner at the time the original orders were made, the relationship was in its infancy stage, and she did not foresee her partner having a role in the day to day care of her children as they were proceeding cautiously with their relationship. The mother's evidence surmised that the relationship had matured since the original orders were made, and that the mother and her partner now wished to share a home, progress their relationship further by starting a family and providing siblings for the mother's three children. Given the mother's age of 41, her evidence argued that she had limited time to start a family with her partner and that they wanted to progress this part of their relationship as soon as possible.

The mother also cited significant financial and personal pressures she had experienced since the orders were made. Her evidence was that, at the time the original orders were made, she had an expectation that the father would pay child support, and that she would obtain local full-time work that would allow her to directly care for children before and after school. However, her evidence showed that she did not obtain local employment and, as a result of the father's sporadic employment status and low child support payments, the mother needed to work three separate jobs in order to meet the family expenses and was required to seek the assistance of family members and paid care providers to assist her with caring for her children. Accordingly, the mother argued that if she was permitted to relocate with the children to south-east Queensland, her financial pressure would be reduced by sharing expenses and child care commitments with her partner.

At first instance, the trial Judge dealt with the Rice & Asplund rule as a preliminary issue and agreed with the father, finding that the mother was raising something now which she ought to have raised previously. The circumstances now were materially identical to the circumstances in existence at the time the final orders were made 15 months earlier. Accordingly, the Court determined that no significant changes had occurred in the mother's circumstances to warrant the Court re-visiting the matter.

On appeal, the Court determined that the circumstances relevant to the co-parenting relationship between the mother and father had changed since the original orders were made and could not have been contemplated at the time of the original order. The Court also determined that those changes identified by the mother were substantial, including the change in nature of her relationship with her present partner, and her desire to expand her family.

In its decision, the Full Court noted that the rule in Rice & Asplund was practically designed to avoid endless litigation based on the same or similar facts, and to avoid the harm that such litigation can do to families. However, the Full Court indicated that, in determining whether there has been a change of circumstances sufficient to enliven the Court's jurisdiction to change the orders, the Court must consider whether the basis or circumstances upon which the first order was made have ceased to exist or broken down in some way and if so, to what extent. In this case, the original orders were predicated on an arrangement where the parties lived in close proximity to one another in a co-parenting environment in Melbourne. The Full Court accepted evidence that indicated the basis for the original order no longer existed in light of the significant changes in the co-parenting relationship between the mother and father, and the mother's application to relocate to south-east Queensland.

Summary

While "final" parenting orders can be made by the Court, those orders are never truly "final" as in appropriate cases, parents can approach the Court to request a change in the arrangements, provided there has been a significant change in circumstances. Whilst our lives become more complex, work commitments more fluid, and new relationships are entered into, it is comforting to know that separated parents have the option to ask the Court to vary parenting orders to better accommodate their various transitions if it is in the best interests of their children.

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Authors
Alison Ross
Leeann Murphy
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