Varying existing Court Order's about parenting matters

The Family Law Courts have a clear principle that a Court should only hear an application to vary an earlier Order if it is satisfied that there is some changed circumstance which would justify such a serious step. This is known as the "rule in Rice and Aspland".

The rule in Rice and Asplund applies whether the earlier orders were made by consent of the parties or after a contested hearing before the Court.

The principle underpinning the rule in Rice and Asplund is that there should be an end to litigation, that is the avoidance of endless litigation between parents examining again and again the same issues and arrangements.

However, there are instances where it is necessary for a Court to revisit earlier Orders. While there is no exhaustive list of what constitutes a changed circumstance in previous cases this has included psychological and physical changes in the child, evidence of violence towards the child, a parent's recovery from former mental health issues, a proposed relocation by one parent and a parent's new stable relationship or marriage.

Should one parent bring an application to revisit earlier Orders and a Court be satisfied that there is a changed circumstance than the matter is considered again by the Court and new Orders may be made. 

Changes to surrogacy laws

In December 2015 the Federal Parliament passed the Family Law Amendment (Arbitration and Other Measures) Rule 2015.  These amendments to the Family Law Act are in part in relation to how the Family Court is determine surrogacy proceedings, and in particular the evidence that is required to presented to the Court in such proceedings.

The amendments provide that evidence is to be adduced to the Court from the applicants as their personal circumstances, from the birth mother as to her personal circumstance and in particular whether she provided informed consent and whether she received counselling and legal advice and evidence is also required in relation to the identity of the child including in relation to citizenship. A copy of any surrogacy agreement is also to be presented.

It is also necessary for evidence as to the relevant law in the child's country of birth to be provided to the Court. 

Child support agreement between Australia and New Zealand

In 2000 an agreement was signed between Australia and New Zealand which sought to facilitate the recognition and enforcement of child support decisions between the two countries.

A fundamental premise of the agreement is that while child support assessments, liabilities and orders of one country can be subject to applications in the other country, any orders made in the second country can only become binding if endorsed by the originating country.

The recent decision by the Full Court of the Family Court in Child Support Registrar & Higgins [2016] confirmed this.

In this matter the mother, a New Zealander, had obtained a child support assessment from the relevant New Zealand agency. The Australian father subsequently sought an order from the Federal Circuit Court here that the assessment be dismissed or that it was unenforceable. Orders were made by the Court stopping the enforcement of the assessment. The New Zealand agency advised the father that the orders were not acceptable as only a New Zealand court could make such a final order. The New Zealand agency subsequently lodged the assessment with the Australian agency for collection. The Australian agency then became involved in proceedings and appealed the orders that had been made on the basis that they were unenforceable.

The Appeal was wholly successful and the Court confirmed the principles of the 2000 agreement.