By Andrea Bunn

9 April 2018

The principle, borne from the 1978 case of Rice v Asplund, is that the Court can only revisit final parenting orders where it is satisfied “there has been substantial change in the circumstances since that earlier order”. Citing Chief Justice Evatt in that case, the court:

should not lightly entertain an application to reverse an earlier custody order [now referred to as parenting orders]. To do so would be to invite endless litigation… the court would need to be satisfied… there is some changed circumstance which will justify such a serious step, some new factor arising or… some factor which was not disclosed at the previous hearing which would have been material.

In contemplation of the rule in Rice v Asplund, the Court takes the view (citing Nygh J in McEnearney v McEnearney) that:

The last thing…this court would wish to see would be a perennial football match between parents who…might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child…

In 2017 (nearly 40 years later), the Full Court of the Family Court of Australia heard the case of Searson v Searson in which it considered the rule in Rice v Asplund in light of the mother’s application to change final parenting orders, to allow her to relocate interstate with the parties’ children. In Searson, the original final parenting orders were made with the consent of the parties on 25 May 2015, providing for the parties’ three sons to live primarily with the mother and spend five nights a fortnight with the father.

On 5 September 2016, the mother filed a fresh application for final parenting orders. She sought to relocate with the children to South East Queensland to live with her de facto partner and proposed that the children travel to Melbourne six times a year to visit their father. The mother submitted that her financial circumstances were “dire” (in part, due to the father’s failure to meet his child support obligations) and she intended living with her new partner (with the children) who would provide financial and emotional support. The parties’ solicitors agreed that the question of whether the rule in Rice v Asplund applied should be determined on a preliminary (separate) basis.

Her Honour Judge Harland heard, and dismissed, the mother’s application on 9 December 2016 finding that she had not:

established a prima facie case that there has been a significant change of circumstance. Many of the issues the mother raises, were issues raised at the time of the final hearing or which could have been raised… [for example] her relationship [with her new partner in South East Queensland] existed at the time of the final court orders…

Harland J took the view that there wasn’t any ‘new factor arising’ as the parties had already contemplated the mother’s de facto relationship at the time they consented to final parenting orders.

The mother appealed successfully to the Full Court. Murphy J held (and Kent & Loughnan JJ agreed). The original orders were predicated upon the parties being in close geographical proximity. The mother’s evidence was that at the time of the earlier orders, her “committed” de facto relationship had been “developing”, but since then the relationship had “deepened” and her financial circumstances had deteriorated – giving rise to her desire to relocate. The Full Court thus held that:

the mother presented a compelling prima facie case that the circumstances relevant to the co-parenting of the children had changed [and] … were substantial.”

The appeal was allowed and the matter sent back to the Federal Circuit Court for trial to determine if there was merit in the mother’s application to relocate with the children. It is clear from this case that careful consideration must always be given to the purpose and reasons for any parenting application after Final Parenting Orders have been made.

To discuss any matter concerning your current parenting orders, please contact a member of our Family Law team.

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