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Child Custody Laws: Can a New Relationship and Dire Financial Circumstances Justify Re-Litigating a Parenting Matter?

relocation family law

Child Custody Laws: The Rule in Rice v Asplund Viewed in the Context of a Subsequent Re-Location Application

Under s 64B of the Family Law Act, he court has the power to vary, discharge, suspend or revive all or part of a parenting order. Although there are no specific grounds for varying a parenting, the applicant is required to demonstrate:

  1. a prima facie case demonstrating a change in circumstances; and
  2. the relevant change in circumstances justifies a hearing.

This requirement is referred to as “the rule in Rice v Asplund.”

Searson & Searson [2017] FamCAFC 119 is a recent decision of the Full Court that explored that application of this principle in the context of an application for re-location. In Searson, the wife had appealed against orders made by consent whereby the parties’ three children would live with the mother and spend time with the father. The orders were finalized in May 2015. In September 2016, the mother filed an application to relocate with the children from Melbourne to South East Queensland. In essence, the mother’s application was predicated on adverse financial consequences that would flow from her remaining in Melbourne the consummation of a new relationship. Relocating to Queensland would alleviate her financial strain since she would be living with her new partner.

The father resisted the application on the basis of the mother’s failure to satisfy the rule in Rice v Asplund. He succeeded at trial. Hence, the mother’s appeal to Full Court.

Child Custody Laws: The Trial Judge’s Decision

The trial judge had found that the mother had failed to satisfy the rule in Rice v Asplund on the basis that she had not demonstrated a change in circumstances from the time that the original orders were made. There were three key findings in support of this determination:

  1. The issues raised by the mother in support of her application either were or could have been raised at the time of the final hearing;
  2. The mother must had contemplated her future relationship with her new partner at the time of the final hearing; and
  3. The court was concerned in regards to the mother’s ability to encourage the father’s relationship with the children, given that she had deliberately restricted their time together.

Child Custody Laws: The Full Court’s Decision

The Full Court rejected the first finding on two separate grounds. First, the trial judge did not identify the relevant issues that either were or could have been raised at the final hearing. Second, the trial judge’s finding was not supported by the evidence.

Similarly, the Full Court determined that there was no evidence to support the trial judge’s finding that the mother was in a position to contemplate her future relationship with her new partner. The mother’s evidence showed that she and her partner had proceeded cautiously with regards to advancing their relationship. This was done for the benefit of the children. After a roughly a year and a half of slowly progressing their relationship, the mother and her new partner determined that he should have a more prominent role in the children’s lives. Accordingly, it was not open to the trial judge to find that the mother should have contemplated her future relationship with her new partner at the time the consent orders were made.

With respect to the third finding, the Full Court determined that the trial judge had misapplied the rule in Rice v Asplund. The third finding is, fundamentally, an analysis of the so-called ‘merits’ of the case. In articulating the rule in Rice v Asplund, the trial judge held that whether the rule had been satisfied should be treated as a preliminary matter. This meant that it should not have been determined by reference to the merits of the mother’s case. The Full Court, however, found that this is precisely how the trial judge treated the matter – by reference to the merits of the mother’s application. Accordingly, the Full Court determined that the trial judge erred in her application of the rule in Rice v Asplund.

Child Custody Laws: Concluding Remarks

Searson is yet another example of what may constitute a change in circumstances for the purpose of satisfying the rule Rice v Asplund. Specifically, it underscores the significance of entering into a new relationship, even if that relationship was in a germinal form at the time the original orders were made.