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20 July 2018

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Family Law
Federal

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Family Law - Rice & Asplund test

I am aware that to set aside or vary final parenting orders, parties must meet the test set out in Rice and Asplund [1978] FamCA 84, whereby the court be satisfied as to a significant change in circumstances before it sets aside or varies final parenting orders. Can you please advise if there are any cases where mere passage of time satisfies the Rice and Asplund criteria?

My client has been subject to adverse parenting orders for more than seven years. They include very restricted contact with the child, no provision for mid-week telephone calls and sole parental responsibility to the other parent.

An application was made some time ago to vary the orders on the basis that the issues existing when the orders were made had resolved and my client’s life was back on track. However, the judge at that time stated that the improvement was foreseen when the original orders were made and therefore the application failed the Rice and Asplund hurdle.

It has now been another three years and the other parent continues to strictly enforce the existing orders. Nothing has really changed since the last application except the passage of more time.

I hesitate to give my client any hope that another application would result in more favourable orders, unless such an application has some basis for clearing the Rice and Asplund hurdle. Are you aware of any such cases?

Many thanks.

Answered

Thank you for the question.

There is no specific time frame within which a significant change of circumstance must or must not be shown. It depends on each case.

There was consideration of the rule in SPS & PLS [2008] FamCAFC 16. In that case the court said:

[48] In my view, reflection on the rule shows that:

(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.

(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.

(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

(vi) “Shorthand” statements of the rule may contribute to its misapplication.

(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.

Other useful cases are:

Effectively, the above cases confirm that ‘rule’ is merely a manifestation of the 'best interests principle', so your client needs to establish that it is in the child’s best interests to vary the orders.

Regards

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