03 Jul Changing Parenting Orders – how to change a court order

Changing Parenting Orders – how to change custody orders

Variation of Parenting Orders- when can you change them?

To set aside, cancel or vary any final parenting order, parties must meet the threshold test. This test is set out in the case of Rice v Asplund (1979) FLC 90-725.

This case provides that where final parenting orders have been made, the court must be satisfied that there is significant change in circumstances before it sets aside or considers changing parenting orders.

The reasoning behind this is found in the ‘best interests of the child principle’ but also in the public interest – to deter parents constantly going to court to reopen parenting orders on any whim, and to provide for certainty.

The Rice & Asplund test can be applied as a preliminary matter or at the end of a full hearing of a parenting matter.

The test

Though the Court maintains its discretion and each case should be considered individually, the preference is to apply the rule as a preliminary matter. The factors that are sufficient to justify a significant change in circumstance are not closed. They are to be dealt with collectively in context and not separately.

The following factors may be considered:

1. 1. Time elapsed since final orders given;
   2. Relocation of a party;
   3. New relationship of a party;
   4. Variation in the children’s wishes (note that younger children’s “wishes” may not carry as much weight as older children who have formed some maturity);
   5. Change in health of a party or any of the children.
   6. Cases that tend to satisfy the test in changing parenting orders

Changed circumstances alone will not be enough for the Court to vary final parenting orders unless it is of a serious nature to justify changing orders, for example:

Newly proven allegations of ongoing physical abuse or neglect of basic needs;
A party is seeking to relocate with the child or children;
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 child or children; or
Either parent or children become disabled or suffer from a severe health disorder.

This list is not exhaustive and only an indication.  Tailored specialist family law legal advice is recommended before bringing about an application to vary final parenting orders.

What to do if you believe final parenting orders should be changed:

At first instance, it would be wise if not mandatory to seek the assistance of alternate dispute resolution services such as with Relationships Australia.  If that does not resolve the matter or it is deemed inappropriate for dispute resolution then the next option is negotiation via lawyers or make the court application and negotiate after it is issued.  It is a serious application to make. tailored specialist family law legal advice is recommended before bringing about an application to change parenting orders.

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