What are Final Parenting Orders?
Final Parenting Orders are family law orders made on a final basis in the Federal Circuit and Family Court of Australia that detail the parenting arrangements for a child or children and are intended to remain enforceable until the child or children attain the age of 18 years.
Final Parenting Orders can be made by a judicial officer at a final hearing after hearing evidence and submissions or by way of consent if the parties are agreeable to the orders to be made.
How to Vary Final Parenting Orders?
Parenting Orders are never ‘technically’ final. Parenting Orders can be varied either by consent of the parties or by further determination of the Federal Circuit and Family Court of Australia.
Where the parties do not consent to varying the Parenting Orders, the party seeking to vary the Final Parenting Orders must file an Initiating Application and supporting documents setting out the variation sought and the significant change in circumstance.
The Court will only consider varying the Final Parenting Orders if the threshold test set out in the case of Rice & Asplund (1979) is satisfied.
What is the Rice & Asplund Threshold Test?
In the case of Rice & Asplund, the Court made Final Parenting Orders which provided for the child to live with the Father and spend time with the Mother. Approximately nine months after the Final Parenting Orders were made, the Mother filed an Initiating Application seeking to vary the Order to the effect that the child live with her and spend time with the Father.
The Mother’s Application was ultimately unsuccessful on the basis that there had not been a “significant change in circumstances” since making the Final Parenting Orders.
Chief Justice Evatt made comment at [78,905-06] that if the Court were to entertain every Application to vary Final Parenting Orders without evidence of a significant change in circumstances, it would “…invite endless litigation for change is an ever present factor in human affairs”.
In other words, a change alone will not be enough to satisfy the Rice & Asplund threshold test. The change must be significant.
What Constitutes a Significant Change in Circumstances?
While there are no specific changes to circumstance that automatically satisfy the Rice & Asplund threshold test, there are a number of situations where parties may have a greater chance at successfully varying Final Parenting Orders, including but not limited to:
- Where the child is exposed to an unacceptable risk pursuant to the current Orders;
- Where it would be in the best interests of the child or children to entertain the Application;
- Where a party is seeking to relocate with a child or children;
- Where the parties have agreed to a new parenting arrangement, such as a Parenting Plan, following the Orders being made;
- Where the Final Parenting Orders were made without all the relevant information being available for consideration by the Court, for example where the either party has not provided full and frank disclosure pursuant to Rule 6.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; or
- Where an extended period of time has elapsed between the making of the Final Parenting Orders and the Application to vary such Orders.
How we applied the Rice & Asplund Threshold Test in a Recent Matter?
Dorter Family Lawyers and Mediators recently acted for the Mother in the matter of Bloxham & Bloxham (No 2) [2020] FamCA 1040, regarding the variation of Final Parenting Orders.
In this matter Final Parenting Orders were made by consent in March 2020.
Notwithstanding the Final Parenting Orders, the Father filed an Initiating Application seeking a variation. The Mother filed a Response seeking that the Father’s Application be dismissed on the basis that there had not been a significant change in circumstances and his Application did not meet the Rice & Asplund threshold test.
The parties were ordered to file Submissions setting out their arguments in respect of the Rice & Asplund threshold issue and Justice Foster ultimately found in favor of the Mother.
At [113] the Justice Foster found that there were no circumstances that would justify the re-litigation of parenting issues as sought by the Father and that the same would not be in the children’s best interests. The Father’s Initiating Application was dismissed.
Need Advice?
To obtain specialist advice about varying Final Parenting Orders, contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you.
Brittany Meehan
Andrew Johnson