Rice v Asplund (1979) FLC 90-725: Can I apply to the Court to vary my parenting orders?
You may have heard of the case Rice v Asplund, one of the most well-known and familiar cases in Australian parenting law. In October 1975, the court made a final order for the father to have custody of the child. Nine months later, the mother applied to vary the custody order and was successful. The father appealed, and the Full Court, set clear guidelines for parenting applications made after final parenting orders.
Considering an application to vary a previous parenting order shouldn’t be taken lightly because doing so could open the door to endless legal battles. When it comes to making this type of application to change a parenting order, the court must be satisfied that there has been a significant change in circumstances that justifies changing the parenting order. This change can be a new factor that has arisen or a factor that was not disclosed at the previous hearing.
Some examples of a significant change in circumstance can be as follows:
- One of the individuals involved wishes to move residences along with the children;
- The existing court orders were issued without considering all pertinent information;
- The parties have subsequently agreed upon new parenting terms (such as creating a parenting plan). Consequently, the existing court orders no longer accurately represent the current parenting arrangements;
- A substantial period of time has elapsed between the final orders being made and the application being brought;
- One or more of the involved parties has entered into new relationships;
- There has been abuse of the children;
- A party to the proceedings or the child is in ill-health.
These principles apply whether the original order was made by consent or after a contested hearing. However, how they apply and what factors will justify the court in reviewing and/or ultimately varying a parenting order will depend on the circumstances of each case.
Ultimately, changing a parenting order is a serious step and should not be taken lightly. Remember, the best interests of the child is always the top priority. For more information about whether your situation meets the above threshold, please get in touch with one of our trusted legal professionals at wedolaw.