- Thus, it seems clear that even where the evidence demonstrates a material change since the previous Order, a Court may well be entitled to nonetheless find that it is not in the best interests of a child for the proceedings to continue. Does the corollary apply? In other words, even if the Court finds that there is not a material change since the previous Order, can the Court nonetheless find that it is in the best interests of the child for the Orders to be revisited?
- This Court believes that the answer is, probably, yes. The Court’s statutory responsibility to make Orders in the best interests of the child cannot, as a matter of law, be fettered by any agreement between the parents as to what they consider to be in the best interests of their child at a particular time. There are obviously good reasons why, in many cases, perhaps in the vast majority of cases, a Court would not readily intervene in those circumstances. That is not to say that the Court does not have the power to do so.
- The rule in Rice & Asplund and, arguably, rule 16.05 of the Federal Circuit Rules when applied to a parenting case, do not supplant, or detract from the mandatory obligation on courts in s.60CA of the Family Law Act 1975 (‘the Act’) which states:
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
- Thus, r.16.05 operates in a different sphere or context. If it were the case that r.16.05 operated in every undefended parenting order where the rule in Rice & Asplund could not be satisfied, or where it is otherwise not in the best interests of the children for the order to be varied or set aside, then the operation of r.16.05 would be elevated above the provisions of the Family Law Act itself. Hence, r.16.05 must be read subject to s.60CA of the Act which mandates that in deciding whether to make a particular order, the Court must regard the best interests of the child as the paramount consideration.
- It would not make sense, for example, for rule 16.05 to operate in a way that almost axiomatically results in the setting aside or varying of undefended parenting orders, if in so doing the Court is making an order that is not in the best interests of the child. In any event, as r. 16.05 explicitly states, it is a discretionary power given to a Court or a Registrar, even if the requirements in r.16.05(2) are satisfied.
- Thus, the Court must make an order that is in the best interests of the children in this case.