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Varying Parenting Orders based on the case of Rice v Asplund

A recent judgment from the Full Court of the Family Court dealt with an appeal against interim parenting orders.  It involved a discussion about what is now known as the rule in Rice and Asplund [1978] FamCA 84.

In the Rice and Asplund matter, the mother applied to the Family Court to vary the Final Orders, arguing that there has been a material change in the circumstances which were present when the orders were made.  She argued that the facts that she had stabilised her accommodation, had married and that the child was about to go to school, all meant that the Order, as it stood, no longer reflected the best interests of the child involved in the matter. Ultimately she was successful, though Chief Justice Evatt commented that the Court“should not lightly entertain such an application, as this might invite “endless litigation”.

This case is occasionally used to support applications to the Family Court in matters which have received Final Orders from the Court, but after which one party applies to vary these, arguing that there have been material changes in the circumstances which were present when the orders were made. That was the case in the recent matter of Phillips & Hansford (No 2) [2019] FamCAFC 165 (4 October 2019).

Here, it was the father who argued that there had been changes in circumstances since the original orders were made.  He raised several grounds of appeal, which were opposed by the mother, including that he had been denied procedural fairness and that the trial judge, before making the orders, should first have undertaken a hearing as to the best interests of the children involved. He argued that the trial judge had not conducted a Rice & Asplund hearing at the relevant time.

This Appeal was dismissed, the Appeal Judges finding that “His Honour described the views of the children as one of his three significant concerns about the matter”.  He was concerned that the “unnecessary and protracted litigation was damaging the children” and that the “pressure of litigation was likely to undermine the children’s relationship with one or both of their parents in the long term”.  He pointed out that the most obvious failure of both parents was “to protect these children from the conflict”. 

In dismissing this Appeal, the Appeal Judges wrote that “we are not satisfied that there is any merit in any of the grounds of appeal”.

Essentially, those litigants who set out to argue for a change in orders on Rice & Asplund grounds, should be aware that this Rule is there to protect the interests of a child or children involved, for whom repeated applications to vary orders when there are insubstantial or no new circumstances to be brought before the Court are damaging. Such children need stability above all, given that their lives have already been fundamentally affected by the activities of their parents. This is not to say that a fresh examination of circumstances is never necessary; merely to point out that unless there have been fundamental changes since the original orders, such an appeal will probably not succeed.

Change in circumstances is the threshold test for the court. And even if change in circumstances is established, the court will then look at how this measures up in terms of the best interests of the child. Anyone contemplating an appeal using Rice & Asplund grounds should be aware that as change itself is an inherent part of life, such an appeal will require more than just the argument that change has occurred.


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