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  • Writer's pictureAmanda Kent

Let’s talk about changing Parenting Orders



Before the court will reopen a parenting matter, the applicant must first establish that there is material change in circumstances since making the Final Orders. This is called the Rule in Rice and Asplund.


The Rule in Rice v Asplund (1978) 6 Fam LR 570

The Court will only entertain fresh proceedings relating to a child who is the subject of existing orders in certain circumstances. The Rule in Rice and Asplund (Rice and Asplund (1979) FLC 90 – 725) operates to protect the intersts of children in not being subjected to renewed litigation unless there has been a significant change in circumstances since the making of the order.


In a statement of principle that has remained unchanged since 1979, the Full Court (at paragraph 78 – 905) made it clear:

“…the court should have regard to any earlier order and to the reasons for … that order … it should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisified by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material … made by consent or after a contested hearing.”


The Rule in Rice and Asplund has been discussed and endorced in the recent cases of Poisat and poisat [2014] FamCAFC 129 and Gorman and Huffman and Anor [2016] FamCAFC 174.


The Full court explained in Poisat & Poisat described the approcach according to the rule in Rice and Asplund and the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth): “The Explanatory Memoranda…refer(s) to “the principle in Rice and Asplund” limiting:

…the court’s capacity to rehear matters in two kinds of cases: those where there is a change in the circumstances of the parties where some new factor has arisen which would justify a serious step; and those where there is some factor which was not disclosed at a previous hearing that would have been material…It is not generaly in the best interest of the child to have repeated applications concerning them before the courts…


Circumstances the Rule is likey to apply

What constitutes a material change in circumstance depends upon the facts each case. Cases of child sex abuse, relocation, parental conflict, contravention of orders and re-partening are the types of changes commonly relied upon by applicants.


Child Sex abuse

Allegations of child sexual abuse – unless clearly vexationus or frivolous – would ordinarily be sufficient to satisfy the Rule. Evidence falling short of unacceptable risk harm of sexual abuse should be sufficient to satisfy the requirement fo a material change in circumstances. This simply ensures that the application for variation is heard on its merits and the questions of unacceptable risk are properly tested on the evidence. A similar approach is also warrented with respect to allegations of non – sexual child abuse.


Relocation

A proposal by a parent to relocate with the child will generally satisfy the Rule. There is a close correlation between relocation and a breakdown in parent – child contact. This makes relocation an issue with inherent implications for the best intersts of a child, particularly in light of recent amendments of the Family Law Act which give primacy to the need to promote a meaningful relationship between a child and both parents. There will ususally be little difficulity in having an application for variation heard where relocation is proposed.


Parental conflict and contravention of orders

Where parental conflict moves beyond disagreement and involves contraventions of parenting orders, whether by a parent failing to exercise contact or the other parent failing to facilitate contact, these contraventions will constitute new circumstances. However, Parental conflict and contravention of orders are unlikely, per se, to satisfy the Rule. It will usually be necessary to demonstrate that the behaviour is adversely affecting a child.


Re – partnering

Re-partering can be a significant catalysit for the breakdown of parent – child contact and thus is of particular relevance when assessing the intests of children. However this close connection is not reflected the in reported case law on the Rule.


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