Re-open a parenting matter...

Family Law IV

When can you re-open a parenting matter where Final Orders have been made previously? 

Under s 64B(1)(b) of the Family Law Act, the Court has the power to vary, discharge, suspend or revive all or part of a Parenting Order.

Whilst there are no specific requirements for applying for any such variations, there is a long-standing principle of Family Law known as the rule in “Rice and Asplund” (1979). In this case the Full Court of the Family Court decided that before it would hear an application to revisit a Final Parenting Order, “the Court would need to be satisfied by the applicant that … there is some changed circumstance which will 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” (Evatt CJ). The Court deemed this principle important to avoid the risk of endless litigation between parents, and as such the Court will not readily (without good reason) re-open parenting matters where Final Orders have otherwise been made.

In a recent case of Searson & Searson [2017] FamCAFC 119, the parents had entered into Consent Orders in 2015 which provided for the children to live with the mother and spend time with the father.

Subsequently, in 2016, the mother made an application to the Court to vary the Orders and seek a relocation of the children from Melbourne to Queensland. The reason she relied upon was that her financial circumstances had become dire and that this would be alleviated if she were able to move with the children to live with her partner in Queensland.

The father opposed the application on the basis that the mother had not demonstrated a significant change in circumstances – primarily because the mother and her partner had been in a relationship at the time the 2015 Orders were made, and that there was no change in her financial circumstances. The Trial Judge agreed with the father and dismissed the mother’s application. In doing so the Trial Judge made three main findings:

  1. Many of the issues raised by the mother had been raised at the time of the final hearing or could have been raised then, and therefore she had not established the case for a significant change in circumstances;
  2. At the time of the 2015 Orders it was a well-known fact that the mother was in a long distance relationship with her partner and she must have contemplated her future relationship with him at the time of the 2015 Orders; and
  3. The Court was concerned about the mother’s willingness and capacity to facilitate the father’s relationship with the children if she successfully relocated with them.

The wife then appealed to the Full Court. Her appeal was allowed and the matter was referred back to the Federal Circuit Court (to a Judge other than the original Trial Judge).

The Full Court agreed with the mother that there had been the required change of circumstances to revisit the Orders, namely a combination of the following:

  • Whilst the 2015 Orders had been made by consent, that agreement had now broken down;
  • The mother’s application to relocate the children to Queensland would undermine the agreement of the 2015 Orders which were based on the parties living near each other;
  • Each party asserted that there had been non-compliance with the 2015 Orders on both sides, resulting in detriment to the children;
  • At the time of the 2015 Orders both parties had asserted their expectations that the father would be able to provide financial support to the mother for the children. This did not turn out to be the case, and as the father was unemployed for some time, the mother was working 3 jobs and under a significant amount of stress.
  • The mother deposed to the fact that her financial woes and the stress of working so many jobs would be reduced if she could relocate with the children to live with her partner in Queensland, thus also resuming her preferred amount of time dedicated to parenting the children.
  • At the time of the 2015 Orders the mother did not assert that her partner had a significant role in the day to day care of the children. At that time the relationship was in the early developing stages. At the time of her current application, her evidence was based on the permanency of this relationship and the significant role the partner had in the day to day care of the children.

The Full Court took the view that the mother presented a compelling case that the circumstances relevant to the co-parenting of the children had changed since the making of the 2015 Orders and that these changes were substantial.

It should be noted that this does not necessarily mean the mother will be successful in her application to relocate with the children, as that case is yet to be heard, but that she now has the right for that application to be heard at another Trial.

This case also raises issues relating to the significance of new relationships at various stages of a parenting matter, and how they can relate to a “change in circumstances”.

Shelley O'Connell