Our Family Lawyers often encounter situations where there are parenting Orders in place but they are no longer working as there has been a change in circumstances. Our Family Law Team was recently involved in a case where the Court considered this issue but in relation to interim parenting Orders, which ultimately lead to the interim Orders being varied. Within this article our Family Lawyers discuss how a change in circumstances can impact parenting Orders, the recent case they appeared in and the types of specific circumstances the court takes into account when considering whether to vary Orders.

Recently our Family Law Team were involved in a case where the Court considered whether there was a significant change in circumstances to warrant a variation to the Interim Orders. The decision made in this case can be viewed here Hyne & Hyne [2023] FedCFamC1F 36

PARENTING INTERIM ORDERS

Interim parenting Orders are temporary Orders made by the Court to deal with immediate (and often urgent) arrangements for the children until a final parenting Order can be made. Interim Orders are generally made to provide stability for children during the Court process, while parents are working towards final Orders being made.

If a case was to continue for a significant period, or there has been a change in one or both parties’ circumstances, there may come a time when a parent must consider asking the Court to vary (change) the interim parenting Orders. In a similar way to asking the Court to vary final Orders, the parent wishing to make a change to the interim Orders needs to satisfy the Court that there has been a significant change in circumstances that warrants the Court changing the interim Orders.

The Court will consider the evidence available at the time of such an application and determine whether the change in circumstances is significant enough to justify a change to the interim parenting Orders. The Court’s primary concern will always be the child’s best interests, but the Court will first need to apply the Rule from Rice & Asplund in order to determine whether there is enough of a reason to vary the interim Orders. If the court finds that there has been a substantial change in circumstances, new interim order may be made that reflects the new circumstances, having regard to what is in the children’s best interests.

THE RICE & ASPLUND RULE

The rule from the case of Rice & Asplund provides that a parent asking the Court to vary or change an existing parenting Order must demonstrate that a significant change in circumstances has occurred since the last order was made that justifies the Court reconsidering the matter. The Rule applies to interim and final parenting orders.

The specific circumstances that would justify the Court considering whether to change interim or final parenting orders will depend on the individual case. The change in circumstances must be significant and must impact the child’s welfare. Some examples of significant changes in circumstances could include:

• A parent’s job loss or relocation to another place;
• A parent’s remarriage or cohabitation with a new partner;
• A child’s medical or developmental needs;
• A parent’s substance abuse or mental health issues;
• The child’s changing preferences or wishes, particularly as they get older.

The court will assess the significance of the change in circumstances and determine whether it warrants a variation to the existing interim or final parenting Orders. It is important to note that minor changes or temporary disruptions to the parenting schedule are unlikely sufficient to warrant a variation of the Orders.

The specific application of the Rice & Asplund principle can vary depending on the facts and circumstances of each case, and it is ultimately up to the court’s discretion to determine whether a rehearing is warranted.

Recent Case Hyne & Hyne [2023] FedCFamC1F 36

On 6 February 2023 Justice Schonell delivered judgment in the case of Hyne & Hyne in the Federal Circuit and Family Court Division 1, which related to whether to change interim consent orders for a parenting matter which you can view at this LINK. Our family law team assisted the Mother in this case, as can be read in the case.

Background

The interim proceedings involve two young children aged five and six. The children’s parents commenced a relationship in 2013, married in early 2014 and separated in 2019. Since separation, the parties have been arguing about the children’s living arrangements, amongst other things.

There have been sweeping allegations made by both parties against the other, including allegations of family violence, drug use, sexual abuse, and mental health issues.

A family report was produced in July 2021 that identified numerous concerning allegations involving both parents. The report referenced evidence of family violence, drug use and allegations that the father had sexually assaulted his child from a previous relationship and allegations that the father had accessed child exploitation material on the internet. The father refuted these allegations and alleged the mother was a perpetrator of domestic violence, a drug addict during their marriage and mentally unstable.

• The report writer recommended that:
• The mother has sole parental responsibility;
• The mother and children be permitted to relocate to a different state;
• That if the father can demonstrate he is not a risk, his time with the children build up to a fortnightly or monthly weekend arrangement;
• After further investigation, the father is not considered a safe parent; he be permitted to spend supervised daytime visits or no time at all.

Even with the content of the family report and the recommendations of the report writer, on 7 December 2021, interim parenting orders were made by consent of both parties that provided for the father to care for the children for five nights every calendar month. There was speculation that at that time, the mother was a single parent who was financially and physically caring for two young children without family support, with one child diagnosed with severe autism and required substantial support.

The parties implemented the interim parenting orders for a short period, with the children spending 5 nights with the father per calendar month. However, within months of the interim orders being made, conflict again arose between the parties, and the father withheld the children from the mother for approximately 34 days in mid-2022. From then, the mother chose not to abide by the orders, and the children’s overnight time with the father ceased.

Around late 2022, one of the children alleged that while she had been in her father’s care, she had been sexually assaulted by him. The mother stated that the allegations were still being investigated by the Queensland Police and the Department of Children, Youth Justice and Multicultural Affairs, which the father vehemently refuted.

The application brought by the mother was to discharge the interim parenting consent orders dated 7 December 2021 and for her to have sole parental responsibility, that the children live with her and either spend no time with the father or supervised time at a contact centre.

The father’s position was that the mother’s application should be dismissed, and the children spend time with him pursuant to the interim orders.

The Independent Children’s Lawyer believed that the children should have limited contact with the father by telephone or some other electronic means; otherwise, the children should not spend time with the father.

Judgment

His Honour determined that as there had been no cross-examination, His Honour was unable to make findings concerning the disputed facts and assertions; however, just because the disputed facts could not be resolved, it did not mean that allegations of potential risk could be ignored.

His Honour stated that when applying the primary considerations in determining the best interests of the children per section 60CC of the Family Law Act 1975, greater weight must be given to the need to protect the children from risk and harm than to the benefit to the children of having a meaningful relationship with both parents.

His Honour highlighted section 60CC(3)(f), which requires the court to consider “the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent” and section 60CC(3)(i) which gives the court broad discretion to consider any other factors that may be relevant to determining the best interests of the child. His Honour stated, “the Family Report and the history after it raises very serious and troubling concerns about the insight of both parents and their capacity to place the interests of the children over and above their interests and needs.”

In re-litigating the parenting order and applying the considerations under section 60CC of the Family Law Act 1975, His Honour found the risk of harm to the children from the father’s historical access to child exploitative material and the competing factual disputes required caution in interim proceedings. His Honour considered that there had been a change in circumstances since the previous parenting orders were made, given that the child’s disclosures that were relevant to the application of the rule in Rice and Asplund, to justify the re-litigation of parenting orders.

His Honour discharged the earlier orders made on 7 December 2021. His Honour declined to make the orders sought by the father for parenting orders. The court did not make an order for sole parental responsibility in favour of the mother. The Court made alternative orders for the father to spend limited supervised time with the children, supervised by an independent professional.

SIGNIFICNANCE

When there are existing orders regarding a parenting matter, whether interim orders, final orders, orders made by consent or orders made by the Court, a party must demonstrate that a significant change in circumstance has occurred since the last order was made to justify the Court considering the matter again.

At an interim hearing, although the Court may not be able to make findings concerning the disputed facts, the court has the discretion to weigh any alleged risk of harm to the child against the benefit of the child having a meaningful relationship with both parents by applying the primary consideration following section 60CC of the Family Law Act 1975.

 

RAMSDEN LAWYERS – HOW WE CAN HELP WITH INTERIM

Our Ramsden Family Law team assist successfully assisted in changing the interim consent orders made concerning the parenting matters on the basis that a significant change in the circumstances had occurred since the interim orders were made.

If it becomes necessary for you to change an interim or final parenting order, as a result of a change in your circumstances since the orders were made, it is essential to speak with a qualified family lawyer who can guide your specific situation.

Our Family Law team are ready to help you navigate your family law matter and advocate for your rights and your child’s best interests.