Relevant Legal Principles
- These are parenting proceedings which are to be determined by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings. However, given that there are already final orders in place in respect of the child, the Court is firstly concerned with whether it should entertain the application at all.
- In Rice & Asplund the Full Court said:
The principles which, in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore the court would need to be satisfied that…there is some changed circumstance which will justify such a serious step, some new factor which was not disclosed at the previous hearing which would have been material…It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing…
- The rule in Rice & Asplund is of long-standing, it has been consistently recognised and applied both by the Full Court of the Family Court, the Family Court and this Court, and it is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.
- The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation.
- The words of caution pronounced by the High Court in CDJ v VAJ are respectfully adopted:
The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and uncertainly of prolonged repetitive proceedings.
- It has been held that the assessment of whether the asserted change in circumstance is significant is simply part of a composite multi-faceted approach for assessing whether the re-litigation of parenting arrangements is in the best interests of the child.
- The Full Court in Marsden v Winch held as follows:
… there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
- In summary, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment. In dealing with such an application, the court must be satisfied that there is some changed circumstance which will justify such a serious step or some new factor arising or some factor which was not disclosed at the previous hearing which would have been material.