How “Final” Are Final Parenting Orders?

A parenting order is a set of orders made by a court concerning the parenting arrangements for a child or children. A court can make such orders based on an agreement between the parties or after a hearing or trial. The order may deal with:

• who the child(ren) will live with;
• the time to be spent with each parent (or others such as grandparents);
• the allocation of parental responsibility;
• the communication between the child(ren) and the parent they do not live with; and
• any other aspects of care, welfare or development of the child or children.

The court is required, when deciding whether or not to make a parenting order, to regard the “best interests of the child as the paramount consideration”.

Once made, the orders cannot be altered unless both parties to the order agree, or the court decides an amendment is appropriate because of a significant change in circumstances.

So, what are the circumstances in which final may not mean final?

Key issues

Under the Family Law Act 1975, the court has the power to vary, discharge, suspend or revive all or part of a parenting order. There are no specific grounds for a variation but the applicant is required to demonstrate a change in circumstances that justifies a hearing. This is known as the rule in Rice v Asplund (1979).

In this case, final orders were made for a three-year-old to live with the father, but nine months afterwards the mother applied to the court requesting the child should live with her and just spend time with the father. In the meantime, the mother had obtained stable accommodation and had remarried, and the child was about to start school. The court decided these changes were significant enough to vary the original orders that were now “unworkable and unrealistic”.

The rule in Rice v Asplund was recently reconsidered by the Full Court in Searson v Searson (2017), where a mother won her appeal against the dismissal of an application to vary a final parenting order allowing her to relocate from Melbourne to Queensland.

The mother had applied to the court to vary orders that had been in place for 15 months. She wished to relocate with her three children to live with a new partner. The husband objected, arguing the circumstances had not changed significantly. In the preliminary hearing, the judge, agreeing with the husband, dismissed the application holding that the mother had not satisfied the rule in Rice v Asplund “raising something now which she ought to have raised previously”. There were also concerns about failures to encourage the father’s relationship with his children.

However, the Full Court felt that, on the mother’s evidence, the relationship with her new partner had developed since the final orders and she now wished to relocate to live with him permanently. Relocation had not previously been part of the mother’s case at the time of the final orders. The Full Court considered it,

“abundantly plain from the mother’s affidavit material that no part of the ... matters to which she deposed prior to the making of the consent orders involved living permanently with her now partner or postulated a significant role for her now partner in the children’s lives or involved her moving to south east Queensland”.

The Court also noted that “nowhere in the ... family report (was) any factual foundation offered which might provide reason for providing any opinion about relocation”.

The Full Court was also satisfied that the mother and new partner had proceeded cautiously with regard to their relationship, with the children’s benefit in mind. The trial judge had also erred in suggesting the mother should have contemplated her future relationship at the time the original orders were made.

The mother gave evidence that the children had formed a close bond with her new partner. They wanted to relocate to make a permanent home in Queensland and have a child together. She claimed she had not had the financial support anticipated at the time of the original orders and had three jobs. The relocation would help alleviate this financial position.

In all of these circumstances the mother’s appeal was upheld and the case referred to another judge for orders and direction to prepare the case for trial.

What does this decision mean?

The rationale of the rule in Rice v Asplund is to prevent children becoming involved in ongoing litigation between feuding parents where the facts are still the same or similar. The courts too have an interest in avoiding endless litigation.

Nevertheless, final parenting orders are sometimes not quite final, as in certain cases the parties can request the court to change arrangements, provided there has been a “significant” change in circumstances. This flexibility is justified as long as it is in the best interests of the child or children.

If seeking a change to parenting orders, it is preferable for the parties to try and negotiate the change before taking the matter to court. If no agreement can be reached, then the party proposing the change will need to file an application to vary the existing orders. If the court is persuaded there is a significant change in circumstances, the arrangements will be determined with the best interests of the child(ren) in mind. Either way, specialist advice and support is essential.

Searson v Searson is further example of what may constitute a significant change in circumstances for the purpose of satisfying the rule in Rice v Asplund, such as the significance and implications of a new relationship.

If you have final parenting orders in place and wish to vary them because of changed circumstances, you should seek specialised legal advice from experienced family lawyers.

Contact our Expert Family Lawyers in Sydney, NSW

Szabo & Associates, Solicitors, can provide expert advice on the wide range of family matters including child support and custody, spousal maintenance and all aspects of divorce and separation. Please call us on 02 9281 5088 or complete our online contact form.