Parenting Orders – A Change of Circumstances For The Parent or The Child

In Prewett & Mann [2013] FamCAFC 130 (27 August 2013) the Family Court (Ainslie-Wallace, Ryan & Le Poer Trench JJ) considered an appeal in relation to parenting orders and a change of circumstances.

Relevantly their Honours found:

• The rule in Rice & Asplund (1979) FLC 90-723 is a manifestation of the best interests principle.
• It is founded on the notion that continuous litigation over a child or children is generally not in their interests. 1
• The application of the rule is connected to the nature and degree of change sought to the earlier order 2

In each case where it is alleged that a significant change has occurred sufficient for a court to reconsider decisions previously made, the court must consider:

• Whether a court should be willing to embark upon another hearing concerning the child and parent; or
• Whether to do so would itself be demonstrably contrary to the best interests of the child 3

In so doing the court must look at:

• The past circumstances, including:
  (a)     The reasons for the decision; and
  (b)     The evidence upon which it was based.
• Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
• The nature of the likely changes.
• The potential detriment to the child or children caused by the litigation itself. 4

• The court must consider whether there has been a significant change of circumstances for both the parent and the child. [60]
• A raft of circumstances had arisen in the years subsequent to the consent orders [62]
• The child had become involved in the dispute [65]
• That involvement had an adverse impact on the child.
• The mother successfully demonstrated that the circumstances had changed sufficiently for the court to change the orders which were originally in place.

1. See Langmeil & Grange (2013) FamCAFC 31 
2. See SPS & PLS (2008) FamCAFC 16; (2008) FLC 93-363) 
3. See Marsden v Winch (2009) FamCAFC 152; (2009) 42 Fam LR 1 (the Full Court) 
4. See Marsden v Winch (2009) FamCAFC 152; (2009) 42 Fam LR 1 (the Full Court)