Can You Reverse a Care Order?

Family Law: 23 March 2019

A Court will not likely entertain an application to reverse an earlier care order.

The Family Court says there is mischief in so doing, as to do so would invite endless litigation for change.

Mischief is said to arise from endless litigation causing emotional damage to litigants and as a result adversely impacting the children. The Court has taken the view that this litigation impairs the ability of the custodian to deal with the present and plan for the future of the family. The Court takes the view that once it has settled the question of custody, it is usually in the interest of the children that the order made by the Court be treated as determining the dispute and be given the necessary support. It takes the view that stability in the lives of children is an essential prerequisite to their wellbeing.

So when can you relitigate?

There needs to be some changed circumstance, some new factor arising, or at any rate, some factor which was not disclosed at the previous hearing which would have been material.

The Court will recognise that there are circumstances in which a significant change has occurred and it will reconsider parenting arrangements as they affect a child. The following indicators are considered:

• Past circumstances, including the reasons for the decision and the evidence upon which it was based.
• Whether there is any likelihood of orders being varied in a significant way, as a result of the new hearing.
• If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child caused by the litigation itself. Thus, for example small changes may not have sufficient benefit to compensate for the disruption caused by significant relitigation.

The proposition that a Court should not lightly entertain an application to reverse an earlier care order is known as the rule in Rice & Asplund. In January this year His Honour Justice Berman in Jackson and Shea [2015] FamCA 22 considered such an application and dismissed it having found that there was insufficient evidence to establish a material change of circumstances of the child that would justify the orders sought.  This case is a useful summary of Rice & Asplund and a reminder of just how hard it can be to have a court entertain an application to reverse a care order, let alone actually overturn the existing order.

For more detail, please read The difficulty in changing a final children's order