In the Marriage of Rice & Asplund
Rice & Asplund (1979) 6 Fam LR 570 is an important Family Law case. The original Rice & Asplund proceedings concerned property and parenting issues between the Mother and Father. The party’s parenting matter involved one child. The matter that came before the Full Court of the Family Court involved an appeal against the second set of final parenting orders made by the Court.
The facts
The child initially lived with the Mother following the party’s separation on 16 February 1975. Nine days after separation, the Father took the child without the Mother’s consent. The Mother filed proceedings and, in October 1975, the Court made final orders for the child to live with the Father (referred to as ‘custody’).
In May 1976, the Father filed fresh proceedings to reduce the child’s time with the Mother. The Mother in turn sought orders for the child to live with her.
In May 1978, the Court made final orders for the child to live with the Mother. Importantly the Mother had remarried in the period between the first orders being made in 1976 and the second orders being made in 1978.
The Father appealed against the decision for the child to live with the Mother. The Father’s barrister argued that, for the Court to review an earlier custody order (or live with order), the person applying had to show “there has been substantial change in the circumstances” since the previous order was made [at 5].
The Courts decision
The Court ultimately dismissed the Husband’s appeal. The Court found the Wife’s remarriage provided a “sufficient reason for reopening the issue of custody” [at 11].
However, His Honour Chief Justice Evatt agreed that in order for a party to apply to change a previous custody order there had to be a change in circumstances. His Honour stated in his judgement:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., 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. [at 7] Emphasise added.
His Honour went on to state that once the applicant demonstrates that there has been a change in circumstances the Court is then to consider the application in “the ordinary way” [at 8]. This requires the Court consider what will be in the child’s best interest.
Significance of this decision
The case of Rice & Asplund is extremely important when you have a parenting matter where previous orders have been made. It is often referred to as a Rice & Asplund issue.
In order to bring an application the applicant needs to demonstrate that there has been a change in circumstances. This applies to regardless of whether the original order was made by consent or by the Court after a contested hearing [see Rice & Asplund at 7].
A Rice & Asplund issue can be dealt with at a final hearing or at an interim hearing. If dealt with at an interim hearing, and the applicant cannot show a change in circumstances the matter will be dismissed at that stage.
Please note: the information in this article is general in nature. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.