Rice and Asplund

My Ex and new partner keep using COVID-19 as an excuse to keep the children.

We have Final Orders so can I bring our case back to Court?

Circumstances of your Case

In the normal course of events, No, you cannot go back to Court to change Parenting Orders if you decide later that you are not happy with them. You would have spent many months preparing for the Final Hearing and the Court set aside the time for all the evidence to be heard.

However, if the Orders are not working and one partner is seriously and repeatedly breaching the Orders, there may be a remedy.

It’s called the Rule in Rice and Asplund. Officially, The Rule in Rice v Asplund (1978) 6 Fam LR 570 

What does Rice and Asplund mean?

The Rule in Rice v Asplund requires that before a Court will contemplate any change to an existing Parenting Order that there must have been a significant change in circumstances of the parties since the previous Parenting Order was made.

Family Law Act 1975 (Cth) S65D(2) gives the Court power to change orders whether discharging, varying, suspending or reviving “some or all of an earlier parenting order”. However the law doesn’t give a guide on how to determine what circumstances would justify the Court to make such a change. 

The decision in Rice v Asplund provides a threshold test that establishes the criteria that would allow this change. As the case states, change is part of life and so any change must be significant or there must be important information that was not made available when the existing Orders were made.

Circumstances that would reach the Threshold

A parent may seek to vary existing orders if he or she is concerned about the care and welfare of a child or children. A Contravention Application may be lodged which may lead to a variation in the Parenting Orders.

Circumstances may include:

• One parent repeatedly failing to comply with the Orders without a reasonable excuse such as withholding a child from spending time with the other parent;

• One parent applying to relocate to a distant location;

• A parent after rehabilitation is no longer addicted to illicit drugs.

How do I enforce the Orders?

Division 13A, S70NAA (FLA) defines in what circumstances a contravention of an order would lead to a change in parenting orders.

Consequences of Contravention

If a contravention has been established according to law, S70 (FLA), consequences depend on the circumstances of the case.

If the contravention is serious the penalty may be community service or prison. 

If the contravention is less serious there may be a “reasonable excuse” which is defined in S70NAE(FLA) that the party did not understand the orders, or that the contravention was necessary for the health and safety of a party.

Varying Parenting Orders

The judgment of Evatt CJ in Rice & Asplund reflects the overarching principle of the FLA that the best interests of the child are paramount. (FLA sS60CA) In order to avoid subjecting children to endless litigation, the Court demands a very high threshold to vary existing parenting orders. 

Even if you meet the threshold, if the original orders meet the best interests of the child, the application will fail. 

If Parenting Orders are contravened criminal sanctions may be imposed and parenting orders rescinded.

All the cases emphasise that it has to be a very serious contravention of the Orders that negatively affects the children before considering bringing a case back to Court.

This article is provided as information only and should not be relied on in Court.

Please contact our office for legal assistance in these matters.