When can you change parenting / custody orders? Rice v Asplund

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Can you change orders? And if so, when can you change parenting / custody orders?  Rice v Asplund

When the Family Law Courts (Family Court of Australia and Federal Circuit Court) make parenting orders (previously known as custody orders), the orders are based on the circumstances that surround the child’s life that were current at the time the orders were made.

Obviously, the circumstances affecting the child will change from time to time.  Can court orders be changed when these circumstances change?

The leading case is Rice v Asplund (1979) FCL 90-725 whereby Chief Justice Evatt said the Court

…should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever present factor in human affairs … there must be evidence of a significant change in circumstances.”

In this case, an order was made granting custody (now referred to as a “lives with” order) of the three year old daughter of the marriage to the father, Mr Rice. Approximately nine months later the Court accepted the wife’s application for variation, giving her custody, with reasonable access (now referred to as “spends time with”) to the father.  The mother had stabilised her accommodation, she had also married a man named Mr Asplund and the child was to commence schooling.  These factors and changes had arguably made the previous orders unworkable.

The rule in Rice v Asplund balances the need to protect children from the effects of ongoing litigation and the need to ensure where circumstances have changed such that a fresh assessment of the best interests is required.

What might constitute a significant change in circumstances will depend on the facts of each case.  Change alone is not sufficient.  Change is an ever present factor in life and it needs to be of a serious nature to justify a review of final parenting orders (custody orders).

If you have current parenting orders (custody orders) and you believe that there may have been a significant change in your circumstances, you should seek legal advice.  It is important when seeking to apply for changes to parenting orders that you seek experienced legal advice from a solicitor that practices in Family Law.

If you have any questions, contact Claire Naidu & Co, Family Lawyers.

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