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My Child Is Commencing Primary School – Is This Change Significant Enough to Reopen Proceedings?


Once Final Orders for a child’s living arrangements have been made, the Court needs to consider whether further litigation would be in the child’s best interest before re-opening litigation. The longstanding authority of Rice and Asplund (1979) (known as the rule in Rice and Asplund) sets out that a significant change in circumstances is required for the Court to reconsider Final Orders. This authority is “founded on the notion that continuous litigation over a child or children is not generally in their interests’.

In the more recent Judgement of Marston and Winch [2009], the Full Court relied upon the rule in Rice and Asplund. The Full Court acknowledged that there are many changes in the lives of families that may permissibly allow re-litigation. However, the change of circumstances needs to be significant because otherwise some matters may litigate until a child turns 18 years. In recognising that there are some significant changes in circumstances that do require a Court to reconsider decisions previously made, the Full Court notes the following needed to be taken into consideration:

  1. The past circumstances when the earlier Final Orders were made, including the reasons for the decision and the evidence upon which it was based;
  2. Whether there is a likelihood of the Final Orders being varied in a significant way, as a result of a new hearing; and
  3. If there is a likelihood that previous Final Orders will be changed in a significant way, the nature of those changes must be weighed against the potential detriment to the child or children cause by the litigation itself.

The Federal Circuit Court recently considered the application of the rule in Rice and Asplund in the matter of Lovell and Winter [2016]. The proceedings revolved around a 5 year old boy, who is to commence primary school in 2017. Final Orders relating to the child’s living arrangements were made in 2013, when the child was 2 years of age. The 2013 Final Orders were made by consent, and were similar to recommendations by a Family Consultant who had been engaged in the matter to prepare a Family Report. The Final Orders provide for the child to live with the Mother and spend substantial and significant time with the Father.

In April 2016, the Father filed an Initiating Application seeking to change the child’s living arrangement. The Father sought orders in the alternative, that the child primarily lives with him, or that the child lives with each of the parents in an equal time arrangement.

The Father relied on 6 changes to the circumstances that existed in 2013 when the Final Orders were made in an attempt to overcome the rule in Rice and Asplund:

  1. That the child will commence school in 2017;
  2. That the Father and his current partner have an infant child;
  3. That the Father’s daughter from a previous relationship commenced living with him in November 2015;
  4. That the Father remarried in 2014;
  5. The Father’s occupation changed from full time employment to self-employment; and
  6. The Father was moving home although he would not be moving far from his current residence.

The Court considered the circumstances that existed when the Final Orders were made by Consent and was assisted by the Affidavit material of the parties, and the Report prepared by the Family Consultant at that time.

The Court heard that in 2013, the Mother complained of Family Violence perpetrated on her by the Father throughout their relationship and this violence was classified by the Family Consultant as Conflict Instigated Violence (also called Situational or Common Couple Violence). Weight was also placed on the parties’ inability to effectively communicate with one another and the Family Consultant relied on research that said “for shared care arrangements to work parents need effective communication, commitment from both parents to make it work and confidence of the other’s parenting capacity.”

The parents’ inability to effectively communicate coupled with the Family Violence led the family consultant to recommend that the child primarily live with the mother, rather than a shared care arrangement as has been sought by the Father in 2013.

The Court then considered whether the changes noted by the Father would likely result in a significant variation of the Final Orders. Most relevantly, the Court found that the parties’ communication with one another had not improved since the Final Orders were made in 2013. Each of the parties had highlighted a history poor communication with one another since the Final Orders were made in their respective Affidavits in the current proceedings. Further, the parties were unable to agree on the school the child would attend and whether he should undergo an operation to have his tonsils removed, which were both issues before the Court at the time of the current Hearing. The Court found that the relationship between the parties had not changed in so far as a shared care arrangement would now be in the child’s best interests.

The Court found that the changes in relation to the Father’s work arrangements, housing and expansion of his family are all normal incidents of life and not significant changes of circumstances. Further, the Court found that the parties knew the child would be commencing primary school in or about 2017 when the 2013 Final Order were made. Thus the commencement of school is also not a change of circumstance.

Relevantly, the 2013 Final Orders provided the following Notation:

“These orders are intended to be re-visited by the parties, by mediation first if necessary, when the child is at kindergarten and certainly not less than six months before the child commences school”.

Ultimately, the Court found that despite this Notation, it was not in the child’s best interests to reopen litigation and the Father’s application was dismissed.

Image Credit – Prasit Rodphan © 123RF.com

Written by Karen Devey on April 4, 2017

Karen has a particular interest in dealing with complex parenting matters that involve mental health or addiction issues, relocation of children and child support agreements. She routinely deals with self-employed clients or matters involving family businesses. View Karen's profile


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