I want to change the Parenting Orders. Can I do this?
The Rule in Rice v Asplund
As far as possible the court aims to make parenting orders final.
Given the unpredictability of life finality is not always possible. In many cases new orders are necessary and/or desirable. There are two ways this can be achieved.
- If both parents agree on the changes to be made they can formalise this by way of a Parenting Plan which will over-ride the existing Court Orders; or
- If the parties are not in agreement then, after mediation has been attempted, an application can be brought to the Court. The court will only entertain varying existing orders if the rule in Rice v Asplund (1979) FLC 90-725 is satisfied.
Simply put the rule in Rice v Asplund is that a court should not entertain an application to change a previous parenting order unless there has been a significant change in circumstances or there was some material factor not disclosed at the earlier hearing, which would justify “such a serious step”.
The test in Rice v Asplund is a ‘threshold test’ therefore if the court is not satisfied that the test has been passed the original orders will not be altered.
It should be noted that even if this ‘threshold test’ is overcome and the application to vary the orders is heard there is no guarantee that the orders will be changed. The matter will be dealt with in the same manner as it previously was and the best interests of the child will be paramount. It does not follow that the best interests of the child will not still be met by the existing orders even though there has been a significant change in circumstances since they were made.
An example of the successful application of the rule occurred in the case of Morton v Berry [2014] FamCAFC 208. On appeal it was found that the expressed wishes of a child (10 years old) in circumstances where that child had not expressed a wish in the earlier proceedings were significant and the case was remitted for rehearing.
