This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Final Parenting Orders: the Rule in Rice v Asplund


Final Parenting Orders are family law orders that detail the parenting arrangements for a child, which are made on a final basis and intended to remain in force until the child turns 18. Final parenting orders can be made by a judge after hearing evidence and submissions by parties who are seeking different outcomes, or by consent if the parties are in agreement about the orders that should be made. A party who wishes to vary existing final parenting orders must bring an initiating application before the court setting out the variation sought. The court will only consider varying final orders if it is satisfied that the test outlined in the 1979 decision of Rice v Asplund has been met.

Rice v Asplund (1979)

The 1979 Family Court decision of Rice v Asplund dealt with the living arrangements for the parties’ three-year-old daughter. The court had previously made orders that the child was to live with the father. Around nine months after this order was made, the mother brought an application to vary the order, seeking orders that the daughter live with her and spend time with the father. Ultimately, the mother’s application was successful.

The mother’s application was filed after there were significant changes in her circumstances. These changes meant that the orders that had been made the previous year no longer reflected the child’s best interests. Therefore, the court agreed to vary the orders in accordance with the application.

The Rule

In Rice v Asplund, the Full Court of the Family Court decided that before reviewing final orders in relation to parenting matters, it needed to be satisfied that there had been a significant change in circumstances since the making of the orders. This is now referred to as the rule in Rice v Asplund.

Chief Justice Evatt stated that the court: “…should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever present factor in human affairs … there must be evidence of a significant change in circumstances.”

The purpose of the rule in Rice v Aspland is to protect children from being exposed to the uncertainty of ongoing litigation.

What is a significant change of circumstances?

In deciding whether there has been a significant change of circumstances, the court will consider the changes in circumstances together with the facts of the matter.

As highlighted by Chief Justice Evatt, change alone will not be enough for the court to accept such an application. The changes must be of a serious nature to warrant a variation. Whilst there are no specific circumstantial changes that automatically satisfy the rule in Rice v Asplund, there are a number of situations where parties may have a higher chance of success in satisfying the rule.

Examples of these are as follows:

  • A party is seeking to relocate with the children;
  • The current orders were made without all the relevant information being before the court;
  • The parties have since consented to new parenting arrangements (e.g. entered into a parenting plan) and therefore, the current orders are no longer reflective of the actual arrangements for the children;
  • A substantial period of time has elapsed between the final orders being made and the application being brought;
  • One or more of the parties has re-partnered;
  • There has been abuse of the children;
  • A party to the proceedings or the child is in ill-health.

What does this mean for parties seeking a variation to Final Parenting Orders?

A person intending to apply for a variation to final Parenting Orders must first consider the rule in Rice v Asplund. They should also attempt to resolve the situation through Family Dispute Resolution Conferencing prior to filing an Initiating Application. The court requires parties to have attempted Family Dispute Resolution conferencing prior to accepting an Application, except where there are exceptional circumstances.

The court is reluctant to vary final Parenting Orders. Even if there has been a significant change in circumstances and the rule in Rice v Asplund is satisfied, it will not necessarily agree to a variation. The court will first need to carefully consider what is in the child’s best interests. It will then decide whether a variation is desirable.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

WHY CHOOSE ARMSTRONG LEGAL?

Armstrong Legal
Social Rating
4.5
Based on 317 reviews
×
Legal Hotline.
Open 7am - Midnight, 7 Days
Call 1300 038 223