By Sharla Stevens
In the recent case of Savard & Savard [2015] FCCA 3524 (21 December 2015) a Federal Circuit Court Judge considered this issue when one party was seeking to amend final parenting court orders that were made on 21 August 2014, just over 12 months before the matter was back in Court.
The Judge referred to the leading case on this topic, being the case of Rice & Asplund (1979) FLC 90-725. What we refer to as “the rule of Rice & Asplund” states that the Court
“would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material”.
The purpose of this rule was stated in Rice & Asplund to prevent endless litigation as “change is an ever present factor in human affairs.”
The original final orders dealt with choice of pre-school and primary school for two children. These Orders were made by consent where both parties were represented by counsel and solicitors.
Later, Mother unilaterally enrolled the youngest child in a different pre-school. The Father returned to court to enforce the original Orders. The Mother’s argument was that there had been a significant change in circumstances due to the 12 months that had passed since the original consent Orders had been made and that she was unable to live in the area of the child’s pre-school and that the travel to and from the pre-school was lengthy.
The Judge also considered that it was in fact the Father that had brought the matter back to Court, rather than the Mother being proactive and making an Application to Court on the basis of what she considered was a change in circumstances.
In the end, the Judge decided that there had NOT been a significant change in circumstances in the matter and ordered that the child be re-enrolled in the original pre-school and restrained the Mother from changing the child’s pre-school or primary school any further and that the original consent Orders remain in place.
So what should you keep in mind if you are wanting to change final parenting Court Orders?
- You should first obtain some legal advice as to whether there has been a sufficient change in circumstances to warrant making an Application to Court.
- Rather than simply breaching the Court Orders you should make an Application to Court seeking a change to the Orders. If there are urgent matters that you are concerned about you should seek legal advice immediately.
- That the time since the last Court Orders were made is not the only thing that a Court will consider but is an important factor.
- Ensure that any material you file is relevant to the matter to avoid any Orders for costs against you. Although a Court will consider your financial position, being poor is not a reason for not making a costs order.
If you are considering whether there needs to be a change to your parenting Court Orders, perhaps because they are unworkable such as in this case, then please contact Cristina Huesch, our Accredited Specialist in family law, or one of our solicitors, Sharla Stevens or Angela Li here at Alliance Family Law on (02) 6223 2400 for advice.
