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Changing parenting orders

Information about when parenting orders may be changed to allow more contact or to change the place where the child will live.

  • The law changed on 6 May 2024
  • This content will be updated as soon as is possible

In the interim please consult the Federal Circuit and Family Court of Australia website or the Victoria Legal Aid Website.

A parenting order may be altered if there have been changed circumstances since the final order was made and the particular change is consistent with the best interests of the child.

Changed circumstances

Generally fresh applications for a parenting order to change a child's living arrangements will not be made unless there has been a substantial change in circumstances since the first orders were made. This rule was set down in the case of Rice v Asplund in a Family Court appeal case in 1979 (see Rice v Asplund (1978) 6 Fam LR 570(opens in a new window)). This is due to the belief that it is in a child's best interests for a stable home environment to be preserved and that endless litigation needs to be discouraged. Final orders are so called for that very reason.

A change of circumstances is necessary even if the first orders were made by consent.

The Family Law Act 1975 (Cth) has been amended since the decision of Rice v Asplund. The Act now includes principles to be followed when conducting proceedings that relate to a child. The first of these principles states that the court must consider the needs of the child and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings. This mandates that the court must consider the impact a court case will have on a child.

What might constitute a significant change in circumstances will depend on the facts of each case. The Court has been careful to point out that change is an ever present factor in life and needs to be of a serious nature to justify a review of final orders.

See ss. 69ZN, 60CA—Family Law Act 1975 (Cth)(opens in a new window) and Rice v Asplund (1978) 6 Fam LR 570(opens in a new window).

Time since final orders were made

There is no fixed minimum period of time that has to pass before the court will reconsider the issue of a child's living arrangements on the basis of changed circumstances. The court will usually require that the matter of changed circumstances be decided as a preliminary issue. When the court is deciding whether there has been sufficient change to justify a hearing, the court will take the applicant's case at its highest. This is because the paramount consideration must be the best interests of the child for the litigation to continue.

Material factor not disclosed at first instance

A matter could also be re-examined if it can be shown that at the time of the earlier hearing some material factor had not been disclosed to the court.

Case of Rice and Asplund

This case involved a child who was 3 years old at the time of separation. The mother moved out of the family home and took the child with her. The father then took the child without consent. The mother applied to court and the trial judge found that the father was a model father, the mother had poor morality and low intelligence. Judge gave custody of the child to the father and access to the mother.

Two years later the father took the matter to court trying to reduce the access that the mother had. The mother made a cross application for custody. At this hearing the judge found both parents to be adequate and capable parents, however also found that the father was not trying to facilitate a relationship between the mother and the child and so gave custody of the child to the mother and access to the father.

The Full Court was mindful of the need to avoid endless litigation but found no problem in the court making very different findings to the first order. It then set out principles to guide when final orders could be re-examined:

  • The court should have regard for the earlier decision and the material on which it was based.
  • The court should not lightly entertain an application to reverse an earlier order.
  • There needs to be some changed circumstance to justify such a serious step.
  • A question of finding that there are circumstances that require the court to consider afresh how the welfare of the child should be best served.

Held: In the case of Rice v Asplund the Full Court of the Family Court decided that before it would review a final parenting order, it would need to be satisfied that a substantial change in circumstances had occurred, or that important information had not been disclosed when the existing orders were made.

This decision is considered to have established a ‘threshold test’ that must be satisfied before a court can look behind final orders to consider whether the sought after variation is in the child’s best interests. The threshold test has been applied in numerous first instance and Full Court decisions.

Best interests of the child

The terms of the final orders will reflect the best interests of the child at the time that the final order was made. Court cases heard more recently that Rice v Asplund have held that:

  • a manifestation of the best interests principle and founded on the notion that continuous litigation over a child is generally not in their interests—Langmeil v Grange [2013] FAMCAFC 31
  • continuing a seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely—Freeman (1987) FLC 91-857, per Stauss J.

If considering an application to change orders

The application of the threshold test is not applied uniformly between cases, and is closely connected with the nature of and degree of change that is being sought to the final parenting order. This test may not be applied at all if only a small alteration is needed. If however more far reaching changes are sought, the test is appropriately applied.

Examples where final orders have been varied include where:

  • one party cannot reasonably comply with the orders
  • the orders no longer reflect the actual arrangements for the child
  • the other carer is repeatedly failing to comply with existing orders without reasonable excuse
  • one parent wants to move a long distance from the child
  • existing orders were made without all of the relevant information being put before the court.

The applicant's lawyer should carefully review the reasons given in the previous order and clearly understand the facts of the case to see what has changed. It is also important to scrutinise the affidavit material from the former case to see whether there are any prior inconsistent statements. They should do this before advising clients or drafting affidavits. Consider whether an expert report is necessary.

For more details of cases that have considered the issue of changing parenting orders see Parenting disputes training day—Altering parenting orders (Rice v Asplund cases)(opens in a new window).

Have parties tried to resolve disputes using mediation?

Parties need to remember that parenting orders may be varied by consent.

Usually the applicant will need to have a section 60I certificate to demonstrate that they have attempted to resolve the matter before they can file an application with the court.

A court may still send parties off to dispute resolution at the first mention.

Possibility that costs will be awarded against applicant

The applicant should also be aware that if the court refuses to make an order varying the former parenting order that it could order costs against the applicant.

More information

Legislation

Family Law Act 1975 (Cth)

  • s. 60CA—child's best interests paramount consideration when making a parenting order
  • s. 60CC—how a court determines what is in a child's best interests
  • s. 64B—meaning of a parenting order and related terms
  • s. 69ZN—principles of conducting child related proceedings

See Family Law Act 1975 (Cth)(opens in a new window).

Cases

Rice v Asplund (1978) 6 Fam LR 570

See Rice v Asplund (1978) 6 Fam LR 570(opens in a new window).

In the Marriage of Saad [1992] Fam CA 44 (4 August 1992)(opens in a new window).

In this case, where the issue was about a father's application to apply for a Jordanian passport, overturning a previous order by the court. The father had been caught trying to take his child out of the country illegally before this. Because of the significant changes to the circumstances since the first order was made, the court allowed the passport.

Reference

VLA Professional legal education VLA Learning Hub

Altering parenting orders (Rice v Asplund cases)

This lecture, delivered by Paul Glass, Barrister, at the parenting disputes training day on 27 November 2015, considered on what grounds may justify reopening a case to vary a parenting order. A powerpoint of this session is made available on VLA's learning hub. VLA staff will have to log into the learning hub to access this training. After logging in you will be directed to the relevant page.

See Parenting disputes training day—Altering parenting orders (Rice v Asplund cases)(opens in a new window).

Access for Community legal centres

This lecture can be viewed online by Community Legal Centre staff and volunteers. To gain access staff will need to contact the Professional Legal Education team and ask for the link and password. Lecture materials can also be provided on request.

Please email ple@vla.vic.gov.au.

Updated