A person may want to apply to the Court to change a parenting order for various reasons, primarily where there have been significant changes in circumstances or where they believe the existing parenting order is no longer in the best interests of the child. Some common reasons of seeking to change a parenting order include relocation of a parent, safety concerns for the child, or the child’s preference at an appropriate teenage year.
The legal principle
The legal principle concerning whether a person can make an application to change a final parenting order was established in the Full Court of Rice & Asplund (1979). In this case, Evatt CJ expressed that the person applying needs to establish that the circumstances of the parties have changed to justify the changing of an earlier parenting order, and either a new factor has arisen since the previous order was made or a factor that was not disclosed at the previous hearing has arisen which would have been material to the case.
In Stern & Colli [2022] the Full Court affirmed the principle in Rice & Asplund and stated that the principle is a manifestation of the best interest principle. The Court expressed that the test to determine whether there should be a rehearing is as follows:
- Whether there has been a change to the parties’ circumstances since the original Court decision was made; and
- Whether these changes are sufficient to provoke a new enquiry having regard to the best interests of the child.
How does the Court determine what is in the best interests of the children?
The Court uses a two-step process to determine what is in their best interests.
First, it considers the primary consideration of the child’s overall wellbeing, including a meaningful relationship with both parents, and the need to protect the child from any physical or psychological harm.
Second, it applies any additional considerations necessary in the particular case, including:
- The child’s views taking into account their age and level of maturity;
- The child’s relationship with both parents and how these relationships might be affected by any proposed changes;
- The need to protect the child from any abuse or family violence;
- The child’s need for stability including the continuity of their living arrangements, daily life, and schooling;
- The ability of each parent to provide for the child, meet their emotional needs, and the child with a safe and nurturing environment;
- The willingness of each parent to fulfill their parental duties, responsibilities and facilitate the child’s relationship with the other parent;
- The child’s cultural and religious background and how it might impact their best interests; and
- Any other factor it deems relevant to the child’s best interests.
Conclusion
The decision about whether there should be a rehearing to change an earlier parenting order is made by the Courts on a case-to-case basis. It is not a decision that the Courts take lightly. The overarching principle is the best interests of the children including any detriment caused to the children because of the rehearing.
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