According to the most recent data from the Australian Bureau of Statistics, 47.8 per cent of divorces in Australia in 2021 were granted to couples with children under the age of 18. As children continue to be affected by separations, and blended families become the norm, parenting orders are becoming increasingly important in the lives of Australian families.
The potential for endless litigation that reviewing parenting orders presents is not lost on the courts.
Nor is the potentially damaging effect of ongoing litigation upon the children whom the parenting orders concern.
However, parenting orders cannot be considered completely final – because, as enshrined in section 60CA of the Family Law Act 1975, the paramount consideration of the Court is the best interest of the child.
The Full Court made it clear that it was proper for a court to reopen a settled issue of a child’s living arrangements
if the applicant could demonstrate “there [was] some changed circumstance which [would] justify such a serious step”. In the 1979 family law case of Rice and Asplund, being the seminal case on reviewing parenting orders in Australia, this test was tried and cited as correct. In this case, Evatt CJ stated that “there are circumstances which require the court to consider afresh how the welfare of the child should be best served”.
The case of Rice and Asplund resulted in the following rule:
The Court should not lightly entertain an application to reverse a parenting order. It would need to be satisfied by the applicant that there was some changed circumstance which would satisfy such a serious step, some new factor arising, or, at any rate, which was not disclosed at the previous hearing which would have been material.
Change is indeed an ever-present factor in human affairs. Recognising this, although Rice and Asplund established the threshold of ‘some changed circumstance’ to allow parenting orders to be reviewed, the Full Court also
acknowledged the impossibility of creating a one-size-fits- all test in cases concerning parenting orders.
To that end, the Full Court stated that the way the principles in Rice and Asplund apply, and the factors that justify the Court’s ability to review a “custody order”, will vary from case to case.
However, cases under the Family Law Act 1975 (Cth) have led to the conclusion that for a parenting order to be
reopened, particularly one relating to where the child lives, a significant change in circumstance must be established rather than “most substantial grounds”, with the onus falling on the parent applying for a change in
parenting orders to demonstrate a significant change exists in the circumstances that necessitate
such a change.
Whilst there is the requirement that some changed circumstance be established to justify the serious step of reopening the case of whom a child shall live with, Rice and Asplund did not indicate clearly how significant any such change must be to succeed.
Bearing in mind the word “significant” brings with it some challenge, one only has to look at the various family law cases where it has been held or suggested by the Court that some of the following changes of circumstance may justify the reopening of parenting issues:
- the use of bad language and “dirty expressions” by a child after spending time with one parent;
- a happy remarriage and recovery from former mental problems by a mother with whom the child did not live;
- remarriage and stabilised accommodation by a mother with whom the child did not live, together with the child commencing school;
- remarriage enabling a parent with whom the child did not live to provide a warm family environment; or
- psychological and physical changes in children as they grow up.
This article first appeared in the May – June 2023 edition of Medicus Journal. Medicus Journal is the AMA (WA)’s award-winning journal distributed bimonthly to more than 4,000 doctors and decision-makers throughout Western Australia. The Australian Medical Association (AMA) is the peak professional body for doctors in Australia.