saraThe Family Court and the Federal Magistrates Court will be asked at times to make orders in relation to where a child should live and how much time they are to spend with the other parent. When these Courts make orders, the orders are based on the current circumstances that surround a child’s life. However, life is full of changes  and sometimes, the orders that were previously made are not practical anymore.

What then will these Courts do if you want to change such orders?

The leading case on such matters is Rice v Asplund (1979) FCL 90-725 whereby Chief Justice Evatt said the Court “… should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever present factor in human affairs … there must be evidence of a significant change in circumstances.”

Recently, in the case of Fante & Joyce (no.1) [2012] FMCAfam 741, Federal Magistrate Coker had to determine whether he should allow parents to change the orders that were made almost 4 years ago, taking into account what Chief Justice Evatt said in the case of Rice v Asplund.

The facts in Fante v Joyce were the orders were made in 2008.  In these orders the mother was given sole parental responsibility for the child. The father’s new application sought for there to be joint parental responsibility as he felt he was excluded from important decision making.  In 2008 there was evidence that there was extreme conflict and mistrust between the mother, her family and the father. This mistrust did not allow the Federal Magistrate to come to the view that sharing the parental responsibility between the parents would be in the child’s best interests.

Federal Magistrate Croker found that nothing had changed in the father’s circumstances to alter this view and stated “The parents still communicate appallingly with each other.”  In that regard, the Federal Magistrate was not convinced that the father had met the rule in Rice v Asplund, that is there was not a significant change in circumstances, and did not grant leave for him to proceed with his application to change the orders.

If you have current children’s orders and you believe that there may have been a significant change in your circumstances in that the orders no longer work, you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.

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