By The TCF Team
The seminal case of Rice & Asplund established the rule that the court will only revisit final parenting orders where there has been a significant change in circumstances. In Searson & Searson, the Full Court considered and applied this rule in the context of a mother who wished to relocate with the children to live interstate with her new partner.
Searson involved an application by the mother in September 2016 to have the Court revisit final parenting orders with respect to the three children of the marriage that had been made by consent (following contested litigation) in May 2015.
Relevantly, the final orders provided for the children to live with the mother and spend time with the father five nights per fortnight, as well as time during the holidays.
The mother sought that the final orders be varied so as to allow the children to relocate with the mother from Melbourne (where both parties lived) to south east Queensland where she proposed to live with her current de facto partner.
The father opposed the mother’s application to vary the final orders on the basis of the rule in Rice & Asplund (1979) FLC 90-725. In the seminal case of Rice & Asplund, the then Chief Justice Evatt suggested (at 78,905) that a court should only entertain an application to vary an earlier order if it were satisfied that there, “… is some changed circumstance which would justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…”. The rationale behind the rule in Rice & Asplund is to prevent children from becoming embroiled in perpetual litigation between warring parents.
At a preliminary hearing, the mother’s application to vary the final orders was dismissed by the trial judge on the basis that the mother had not met the threshold established by Rice & Asplund. The trial judge accepted the father’s argument that the mother had failed to establish a significant change in circumstances where the mother and her partner were already in a committed relationship at the time the final orders were made (and there had been no adverse change to the mother’s financial circumstances). The trial judge held that many of the issues raised by the mother in her application to vary the final orders had been raised by her or ought to have been raised by her at trial and prior to the making of the final orders.
The mother appealed to the Full Court. In upholding the mother’s appeal, the Full Court found that, in considering the application of the rule in Rice & Asplund at a preliminary stage of the proceedings, the trial judge was bound to accept the mother’s evidence in relation to the purported significant change in circumstances.
The Full Court accepted, based on the mother’s evidence, that the relationship with her partner had developed and deepened since the making of the final orders to the point where he had a significant role in the children’s lives and where she was considering relocating in order to live permanently with him. The prospect of relocation had not formed part of the mother’s case at trial prior to the making of the final orders.
The Full Court found that the conclusion reached by the trial judge – that there had been no material change in circumstances – was not reasonably open to her on the evidence. Among other things, the Full Court held that there was no evidentiary basis for the trial judge’s acceptance of the father’s argument that the relationship between the mother and her partner was fundamentally the same as it had been at the time of the final orders, and that these matters ought to have been raised by her at trial.
Having upheld the mother’s appeal, the Full Court referred the case to another judge for orders and directions to prepare the case for trial.