Understanding the Rice v Asplund Case and Varying Final Parenting Orders in Australia

Navigating family law in Australia can be challenging—especially when seeking to vary Final Parenting Orders. Final Orders are designed to bring certainty and finality to parenting arrangements until a child turns 18. However, circumstances can change significantly, and when they do, parents may wish to revisit these arrangements.

One of the most important precedents in this area is the Rice v Asplund (1979) decision. This case laid the foundation for the test courts use when deciding whether to revisit or vary final parenting orders. In this article, our team at Sky Solicitors Sydney outlines the case’s significance and explains the legal process for applying to vary parenting orders in Australia.

The Rice v Asplund (1979) Case: A Key Precedent in Family Law

The Rice v Asplund case remains a cornerstone of Australian family law regarding the variation of final parenting orders. The matter involved a dispute over custody of a three-year-old child. Initially, the father was granted custody. However, just nine months later, the mother sought a variation, arguing that her circumstances had substantially changed.

The Full Court of the Family Court of Australia ruled that before it would consider such an application, it must be satisfied that there had been a significant change in circumstances since the Final Orders were made. Chief Justice Evatt stated that applications to vary parenting orders should not be taken lightly, as repeated litigation could undermine the child’s stability and welfare.

This principle, now known as the Rice v Asplund test, helps ensure that parenting orders in Australia are only revisited when genuinely necessary.

In that case, the Court found that the mother’s change in circumstances was significant enough to justify reviewing the original orders. Ultimately, the mother was successful in her application to vary the Final Orders.

What Constitutes a “Significant Change in Circumstances”?

Courts consider several factors when determining whether there has been a significant change in circumstances. These may include:

1. Allegations or evidence of child abuse, family violence, or neglect;
2. Repeated exposure of the child to domestic violence;
3. One or both parents entering into new relationships;
4. Relocation of one or both parties;
5. A substantial passage of time since the original Final Orders;
6. Changes in a party’s medical or financial condition;
7. The child’s views and any new agreements made between the parties.

It is important to note that not every change in a parent’s life will satisfy the Rice v Asplund test. The change must be serious and substantial, and it must impact the child’s welfare in a way that warrants revisiting their routine.

How to Apply to Vary Final Parenting Orders in Australia

If you believe a significant change has occurred and that your current parenting orders no longer reflect the best interests of your child, the following steps outline the legal pathway.

1. Attempt to Resolve the Dispute (Pre-Action Procedures)

The Federal Circuit and Family Court of Australia (FCFCOA) requires parties to try to resolve disputes outside court first. This includes attempting mediation or negotiation, unless the matter is urgent or involves family violence.

At Sky Solicitors Sydney, we assist clients in engaging in pre-action procedures and mediation, providing strong advocacy and legal guidance through the negotiation process.

2. Seek Legal Advice from a Family Lawyer

Obtaining expert legal advice is essential. A skilled family lawyer will assess whether your matter meets the Rice v Asplund threshold and help you build a strategy tailored to your case.

Our experienced team at Sky Solicitors will evaluate your position and advise you on whether an application to vary is likely to succeed based on your individual circumstances.

3. File an Initiating Application with the FCFCOA

If negotiations are unsuccessful, you may file an Initiating Application with the Federal Circuit and Family Court of Australia. This application must clearly outline the proposed changes and provide evidence of the significant change in circumstances.

At Sky Solicitors, we routinely draft legal documents such as Initiating Applications, affidavits, and Notices of Risk. These documents are critical in establishing your case, and we ensure they are accurately and persuasively prepared to reflect your position and goals.

4. Attend a Family Dispute Resolution Conference

In most cases, the Court will require the parties to participate in a Family Dispute Resolution (FDR) Conference. This is a key opportunity to explore resolution and avoid trial.

An Independent Children’s Lawyer (ICL) may be appointed to represent the child’s best interests and assist the Court in determining what outcome is most suitable. Our lawyers at Sky Solicitors are highly experienced in advocating at these conferences and working with ICLs and the other party to achieve practical and child-focused parenting arrangements.

5. Attend a Court Hearing

If settlement is not possible, your matter will proceed to a Final Hearing. At this stage, the judge will consider all the evidence and determine whether varying the orders is in the best interests of the child.

The Court will consider factors such as:

• Each parent’s capacity to care for the child;
• The child’s emotional and physical needs;
• Risks to the child’s welfare;
• Any other relevant circumstances.

At Sky Solicitors, we prepare clients thoroughly for hearings and provide honest, practical legal advice about their likely outcomes based on the evidence.

6. Obtain New Parenting Orders

If the Court is satisfied that a significant change in circumstances has occurred, it may issue new parenting orders that better reflect the current best interests of the child.

Final Thoughts

The Rice v Asplund case plays a vital role in maintaining the balance between legal finality and the changing needs of children and families. Successfully varying Final Parenting Orders in Australia requires careful preparation, clear evidence of a significant change, and a focus on the child’s best interests.

For general information about the court process, you can also visit the Federal Circuit and Family Court of Australia website at www.fcfcoa.gov.au.

Contact Us

If you’re considering applying to vary your parenting orders, contact Sky Solicitors Sydney for expert advice and representation. Our family law team will help you assess your eligibility, prepare your application, and guide you through every step of the process with compassion and clarity.

Book a consultation or speak directly with one of our family law solicitors today.

Disclaimer: this article is prepared for educational purposes only and does not constitute legal advice in any way, shape or form. For tailored advice specific to the circumstances of your matter, you should consult with our office directly and one of our lawyers will arrange a free, initial consultation.