By The TCF Team

Cameron & Brook [2018] FamCAFC 175

The Full Court of the Family Court held in Rice & Asplund (1979) FLC 90-725 that unless a party can establish a significant change in circumstances since an earlier parenting order was made, the matter should not be reopened.

In the recent decision of Cameron & Brook [2018] FamCAFC 175, the Full Court determined that the principles enunciated in Rice & Asplund do not apply in cases which involve a new question between parents as to an aspect of parental responsibility.

Parental responsibility is defined in section 61B of the Family Law Act 1975 (Cth) as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

In Cameron & Brook, consent orders were made on a final basis more than three years prior, when the child, known as K, was 11 years of age. Those orders provided, amongst other things, for the parents to have equal shared responsibility for K and her siblings.

At the time of hearing, K was 14 years of age and in Grade 9. The proceedings related to the mother’s application for K to be permitted to participate in an overseas student exchange programme, available to K through her local school.

K’s wish to apply for selection to the overseas exchange programme was supported by her mother but opposed by her father. If selected, K would live and attend school in one of three overseas countries, for a period of between four and eight weeks. The exchange would occur when K was 15 years of age and in Grade 10.

The mother’s application sought that K be permitted to participate in the exchange programme and that she and the father, sign all documents necessary to facilitate K’s participation. In the alternative, the mother sought to assume sole responsibility in respect of the exchange programme. The application filed by the mother sought interim orders in identical terms.

The mother’s application for interim orders came before Judge Coates on an urgent basis, as the selection interviews in respect of the exchange programme were the following day. His Honour dismissed the mother’s application, in respect of both interim and final orders, on the basis that the court lacked the power to make orders in the terms sought. His Honour held:

66. This situation, in my view, is analogous to that explained in Rice & Asplund [1978] FamCA84; (1979) FLC 90-725 where it was said change is ever present as a child grows and change along is not enough to obtain new parenting orders from a court.

67. …

68. Although I stated earlier that this was a parenting order which could be made, in my view, it is, but only where there is such a change of circumstances that the court ought intervene; or the parents or the child do not have capacity; or orders for parental responsibility do not exist; or where the situation is so unworkable that the existence of an unacceptable risk to the child is apparent.

The Full Court of Strickland, Murphy and Kent JJ held that the rule in Rice & Asplund did not apply, as there was no attempt to reagitate issues previously raised, addressed or settled by the consent orders. The application involved a new question relating to an aspect of parental responsibility not contemplated by the parties at the time the original orders were made.

The father, both at first instance and on appeal, made submissions to the effect that once an order for equal shared parental responsibility is made, any order about major long-term issues is left to one party’s will suborning that of the other, with no role from the Court.

The Full Court held that although parental responsibility was the subject of an existing order, the Court had both jurisdiction and power to determine a question if the parties could not agree themselves.

The Full Court, in a re-exercise of its discretion, determined that it was in K’s best interests to have the opportunity to be chosen for the exchange programme. If K is selected into the exchange programme, a further determination may be made.