With the new year upon us, many new enquiries relate to parenting orders and whether these can be changed. Thankfully in the recent case of Searson & Searson [2017] FamCAFC 119 (5 July 2017) the Full Court (Murphy, Kent and Loughnan JJ) reviewed the current case law with respect to this.
In Searson & Searson[1] the Full Court allowed an appeal by a mother against the trial judge’s decision where the mother’s application was dismissed on the basis that there was no significant change of circumstances.
The simplified facts of the case are as follows:
- The mother and father separated in 2013 with three children (five year old twins and a three year old).
- On 25 May 2015, the mother and father entered into Final Orders that were sealed by the Court.
- The Orders provided for the children to live with their mother and spend five nights per fortnight with the father.
- On 5 September 2016, the mother filed an application seeking to amend the parenting orders allowing her to relocate with the children from Melbourne to South East Queensland.
- The father responded and opposed the application.
- On the first return date, the mother and father agreed that the issue relating to the rule in Rice & Asplund[2] be dealt with as a “preliminary matter”.
- The hearing of the mother’s application was confined to the Rice & Asplund issue and the trial judge dismissed the mother’s application on the basis that there was not sufficient change in circumstances as:
- the mother had a committed relationship with her partner when the consent orders were made and has a committed relationship with him now and that, accordingly, nothing has changed; and
- the mother asserts that she is in “dire” financial circumstances now and this represents no change to her position at the time that the consent orders were made.
- The mother appealed.
The import of the appeal for family law matters comes down to the discussion of the rule of Rice & Asplund[3] both in this case and previous cases:
- Paragraph 9 discussion of SPS & PLS[4] where Warwick J stated: “… when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear, or some lack of compliance with form and procedure, but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will, or ought be, that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue”.[5]
- Paragraph 16 discussion of Marsden & Winch[6], where the Full Court said: “That question might be better formulated in another way in the following proposition, namely that there is a requirement:
- For a prima facie case of changed circumstances to have been established; and
- For a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”
The Full Court referred to the mother’s evidence and found that the father had not produced evidence sufficient to discharge the prima facie presumption that the applicant mother’s evidence would be accepted due to the following:
- The mother was in a relationship when the consent orders were made, but she could not have contemplated that the relationship would become serious; that she would envisage living permanently with her partner; nor the significant future role her partner would have in the children’s lives; and
- The mother was experiencing financial difficulty, but both the mother and father admitted into evidence the fact that the father had not made child support payments as anticipated at the time the consent orders were made, and that the mother was now working three jobs, where she was previously only working part time hours in her own business.
Conclusions succinctly stated as follows:
- At paragraph 44: “With respect to her Honour, I am unable to see how it was open to her Honour to conclude that there had not been the required change of circumstances. For example:
- The parties’ agreement founding the consent orders had broken down.
- That agreement and those orders were predicated upon both parties living within close proximity of each other and in Melbourne. The mother’s application and proposed orders involved her living with the children in South East Queensland.
- On both parties’ cases considerable difficulties had occurred with the consent orders from the time they were made. Each asserted that the other had not complied…”
- At paragraph 45: “in my respectful view the mother presented a compelling prima facie case that the circumstances relevant to the co-parenting of the children had changed since the making of the consent orders. Equally, in my view, she presented a compelling case that the mooted changes were substantial.”
The appeal was allowed.
[1] Searson & Searson [2017] FamCAFC 119 (5 July 2017)
[2] Rice & Asplund (1979) FLC 119
[3] Rice & Asplund (1979) FLC 119
[4] SPS & PLS (2008) FLC
[5] SPS at [81].
[6] Marsden & Winch (2009) 42 Fam LR 1 [58]
