What are Final Orders?
Final Parenting Orders can be made by either:
– agreement between parties, which is known as Consent Orders; or
– a Judge making Final Orders after a Trial if no agreement can be reached.
The types of matters that are often covered in Final Parenting Orders include who the child/ren will live with and what time they will spend and communicate with the other party. Orders can also cover who has parental responsibility (decision making power) for the child/ren as well as other matters such as what will happen on the child/ren’s birthdays, Christmas, school holidays and overseas travel.
Final Parenting Orders will remain in force until the child/ren turn 18 years old.
When can Final Orders be changed?
It is not a simple process to change Final Parenting Orders.
For parents to change the Orders, one of them must file an Initiating Application with the Court, seeking new Orders in their place.
The Court will only consider making new Orders if it is satisfied that there has been a significant change in circumstances since the Final Orders were made. This is commonly referred to as the rule of Rice and Asplund.
It is ultimately a discretionary matter for the Judge as to whether they choose to deal with and determine the Rice and Asplund issue at the outset of the matter or at the beginning of the Final Hearing.
Rice v Aplund 1975
Rice v Asplund was a 1975 case where the Full Court of the Family Court of Australia determined that, before reviewing Final Orders, the Court would need to be satisfied that there is evidence of a significant change in circumstances. The purpose of this rule to is avoid an endless cycle of litigation and to protect children from possible exposure to this.
The case related to the arrangements for the parties’ 3 year old daughter. The Court had made Final Orders for the child to live with the Father and spend time with the Mother. Approximately 7 months later, the Father filed to reduce the time that the child was to spend with the Mother. She then filed an Application seeking that the Orders be varied and that the child live with her and spend time with the Father. The Mother was successful and the Father then appealed, resulting in this decision.
What constitutes a significant change in circumstances?
Change alone is not enough to warrant a change in Final Orders. There are also no specific set of circumstances which will automatically satisfy the Court of a significant change and the threshold of Rice and Aplund. Instead, the Court considers the facts of each matter on a case-by-case basis.
Examples of factors that may satisfy the Court of a significant change are as follows:
- A party wishes to relocate with the child/ren;
- The Final Orders were made without all of the relevant information and evidence being before the Court;
- There has been a change to the health of the child/ren or a party;
- A party has entered into a new relationship;
- The parties have consented to new arrangements and the Final Orders are, therefore, not reflective of the current arrangements for the child/ren;
- The child/ren may be at an unacceptable risk of harm; or
- There has been a substantial elapse of time since the Final Orders were made.
Other options to change Orders?
There are options available to parties that wish to change Final Orders, outside of Court litigation. These options should be explored first before filing an Application in Court. Of course, there may however be circumstances where this might not be appropriate. For example, in circumstances of urgency or where a child is at risk of harm.
If you and the other party are able to speak between yourselves and reach an Agreement to change the Final Orders, then the easiest way to formalise this is by entering into a subsequent Parenting Plan. Although a Parenting Plan is not a legally binding agreement like that of the Final Orders, it can be considered by a Court if a party were to file contravention proceedings.
If you are unable to reach an agreement between yourselves and the matter is not particularly urgent, then the next step would be participating in a Family Dispute Resolution Conference otherwise known as Mediation. This will give you each an opportunity to:
– discuss any issues and
– discuss your positions; and
– possibly reach an agreement with the assistance of an independent third party who will act as mediator.
It may also be an option to attend upon a Family Report Writer to obtain a Family Report. The Report will make recommendations for future arrangements, which may help guide the parties and assist in reaching an agreement. Alternatively, this can also be considered by the Court if the matter were to proceed to litigation.
Whilst there are certainly options available to anyone that wishes to change Final Orders, the best option is always to firstly speak with the other party to see if you can reach an agreement between yourselves. Court should, if possible, be a last resort. Court litigation can be an extremely lengthy, costly and an unpleasant experience for everyone involved.
By Tegan Martens
Director & Principal Lawyer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based on your particular circumstances.