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The difficulty in changing a final children's order

Family Law: 18 March 2019

Although a final parenting order is not actually considered to be "finalin the true sense of the word, the Court will not lightly entertain an application to reverse such an order, on the basis that to allow a party to do so would invite endless litigation for change.  This proposition is known as the rule in Rice & Asplund (1978) 6 Fam LR 570.

The rule is designed to prevent emotional damage to litigants; and as a result adverse impacts upon the subject children. The Court generally takes the view that such litigation impairs the ability of the parent to deal with the present and plan for the future of the family; and that stability in the lives of children is an essential prerequisite to their wellbeing[1].

So when can you re-litigate?

There are two broad categories whereby the court will allow a party to bring an application to change a final parenting order.  The first is in the circumstances of something that was not disclosed or apparent to the court when the original order was made[2]. An example of such a non-disclosure might be where the court was not informed about allegations of family violence.  The second category is much more commonly raised, and is in the case where one party says that a material change of circumstances has arisen since the making of the final parenting order. 

In King & Finneran (2001) FLC 93-079, the court said:

"The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it would be necessary to re-litigate the parenting issue in dispute between the parties.    That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders.  It merely indicates that the change or fresh circumstance must be such that if taken into account, there is a real likelihood that a change may follow.€

It is a matter for the Judge whether they determine the Rice & Asplund issue as a threshold question at the first opportunity, or as part of the final hearing[3].    If it is determined as a threshold issue and the case is found lacking, then it can be summarily dismissed.    When a Judge elects to consider the matter as a preliminary one, the Judge must consider whether, if the evidence is taken at its highest, it is sufficient to comply with the rule in Rice & Asplund. [4]  Often, a Judge will determine the Rice & Asplund issue as part of a final hearing because the a finding of what is in the children's best interests overall is often impossible to make until all the evidence can be tested.

When determining questions of Rice & Asplund, the court has looked at the following:

  • The reasons for the earlier decision and the evidence upon which it was based. [5]
  • The likelihood of the orders being varied in a significant way as a result of the new hearing.    
  • Any potential changes to existing orders must be weighed against the potential detriment to the child caused by the litigation itself. For example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation. [6]
  • The time that has elapsed since the making of the original order, and whether it was by consent or following a contested hearing [7]

A recent case is that of Jackson and Shea [2015] FAM CA 22, where final parenting and property orders were made one year earlier.  The parties had a 10 year old child at the time of judgment in the original matter. The Husband brought a fresh application seeking orders that allowed distributions made to the child from a trust be paid to both parties and applied to the child's school fees and other expenses.    The Husband said that such orders were appropriate because he was not made aware of the existence of the distributions at the time of the hearing at first instance.  The Wife sought summary dismissal of the Husband's application. 

The court dismissed the application, finding that there was insufficient evidence to establish a material change of circumstances that would justify the orders sought.  The court also found[8] that there was the potential for adverse impact on the child by virtue of exacerbating existing parental conflict by further litigation, and that there was no evidence that the Husband's proposal would directly benefit the child.    

In Biggs & Hurst (Application pursuant to Rice & Asplund) [2014] Fam CA 217, final children's orders were made in 2012 following a four day contested hearing.  The children were aged 14 and 10 at the time of the hearing of the new application.  The final orders provided for the Mother to have sole parental responsibility, the children to live with the Mother and the Father to spend time with the children initially on a supervised basis for twelve months.  The Father was also ordered to complete various programs including rehabilitation for alcohol abuse. 

The Father sought to discharge the requirement for him to attend rehabilitation.  He also sought to spend time with the children each alternate Sunday during the day.  His application was brought on the basis that he said he had ceased consuming alcohol and was rehabilitated.  The Mother sought summary dismissal of the Father's application.  The court found that there was no corroborating evidence supporting the Father's assertions, and dismissed his application. 

The recent cases are reminders of just how hard it can be to have a court entertain an application to reverse a children's order, let alone actually overturn the existing order.

[1] Freeman & Freeman (1986) 11 Fam LR 293

[2] Langham & Langham (1981) 6 Fam LR 862

[3] D & Y (1995) 18 Fam LR 662,

[4] SPS & PLS (2008) FLC 93-363

[5] Langmeil & Grange [2013] FamCAFC 31

[6] See King & Finneran where the Husband sought to add four hours each fortnight and one or two public holidays per year. 

[7] There is no rule in respect of the passing of time.  However, as a general proposition, the more time that has passed since the original order was made, the more likely it is that a party will be able to persuade the court of a material change in circumstances, such as the maturing of children and a shift in their views. See Zebaneh & Zebaneh (1986) 11 Fam LR 167 where the court held that the passing of time was relevant, it was not of itself sufficient to demonstrate a material change of circumstances

[8] At [37]

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