Overview

When it comes to Final Parenting Orders, the well-being and best interests of the child or children are paramount in Australian family law. But what happens if circumstances change after Final Parenting Orders are made? Can you amend them? This article will explore the possibility of amending Final Parenting Orders, with a particular focus on the influential decision of Rice & Asplund (1979).

What are Final Parenting Orders?

Final Parenting Orders are family law Orders made on a final basis in Court that detail the parenting arrangements for a child or children and are intended to remain in force until the child or children turn 18. They establish the framework for parenting responsibilities, time spent with each parent, decision-making authority, and other relevant aspects.

Final Parenting Orders can be obtained in one of two ways:

1. by way of consent if both parents are agreeable to the Orders - the parties would then simply file an Application for Consent Orders in Court; or
2. made by a Judge at a Final Hearing in Court.

Once obtained, Final Parenting Orders are legally binding and enforceable.

Can I Change Final Parenting Orders?

If both parents agree to vary the Final Parenting Orders, they would simply need to file new Consent Orders in Court. Provided that the proposed new Orders are in the child’s best interests, the Court will make the new Parenting Orders.

However, if a parent does not agree to vary the Final Parenting Orders, the party seeking to vary the existing Orders must file an Initiating Application with the Court setting out the new Orders sought and convince the Court that there has been a significant change in circumstances such that changing the Orders is in the child’s best interests.

The Court will only consider varying the Final Parenting Orders in very limited circumstances and if the threshold test set out in the case of Rice & Asplund (1979) is satisfied.

The Principle of Finality

In the case of Rice & Asplund (1979), the Court established the principle of finality, emphasising that there must be a significant change in circumstances before revisiting or amending Final Parenting Orders. The case sets a very high threshold for re-opening parenting matters to prevent unnecessary litigation and disruption in children's lives.

To successfully amend Final Parenting Orders, you must demonstrate a significant change in circumstances since the Orders were made. A significant change typically refers to a substantial shift that affects the child's well-being or renders the existing Orders impractical, unworkable, or not in the child's best interests. The change must be more than a mere change in preference or disagreement with the Orders.

Examples of Significant Changes

Every case is different and there is no one specific change in circumstance that would automatically satisfy the Rice & Asplund (1979) threshold test, but here’s a list of examples we’ve put together where a Court may determine that there’s been a significant change in circumstances:

1. Relocation: one parent wants to move a considerable distance, impacting the child's ability to spend time with the other parent; 
2. Safety concerns: new information arises regarding the safety or welfare of the child in one parent's care and the child would be exposed to an unacceptable risk pursuant to current Orders;
3. Child’s best interests: where it would be in the best interests of the child to entertain the Application;
4. Developmental needs: the child's needs changed significantly due to age, health or educational requirements;
5. Parental capacity: one parent's ability to meet the child's needs significantly improves or deteriorates; or
6. Where the Final Parenting Orders were initially made without all the relevant information being presented to Court.‍

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‍Summary‍

Amending Final Parenting Orders in Australia is possible but requires demonstrating a significant change in circumstances since the Orders were made. The influential decision of Rice & Asplund (1979) established the principle of finality, emphasising the importance of stability for children, and the need for substantial changes to warrant revisiting parenting matters. 

Seeking legal advice is crucial when considering amendments to Final Parenting Orders. Amending Final Parenting Orders is a complex legal process and there can be costs consequences involved against you if your Application fails. Contact one of our family law experts at Greenleaf Legal today on (02) 8605 3437 who can assess your circumstances, guide you through the process, and provide you with tailored advice based on your situation and the law.