The principle developed in Rice & Asplund (1979) FLC 90-725 is well-known. In that case, the Full Court of the Family Court of Australia had to consider what principles should apply when a court is faced with an application to change an earlier parenting order. Evatt CJ said the following:

The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order into the reasons for 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... Change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that... 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.

The trial judge has discretion as to whether to consider the Rice & Asplund principle as a preliminary issue or after a full contested hearing. It is important to bear in mind that the principle in Rice & Asplund is merely a manifestation of the best interests’ principle.

In Marsden & Winch [2013] FamCAFC 177 the Full Court stated at paragraph 58:

Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:

1. The past circumstances, including the reasons for the decision and the evidence upon which it was based.

2. Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

3. If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.

In Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383, the Full Court pointed out that section 69ZN of the Family Law Act 1975 requires the Court to consider the impact of proceedings on children.

The Honourable Justice Warnick in SPS & PLS [2008] FamCAFC 16  – (‘SPS & PLS’) observed at [81] that when the threshold question described in Rice & 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 done so because assuming the evidence of the applicant is accepted, there is insufficient change in circumstances to justify embarking on a hearing. His Honour went further to say that:

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.

In Carriel & Lendrum [2015] FamCAFC 43 (‘Carriel & Lendrum’), the Full Court said at [57]:

In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the children whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child or children to embark upon further litigation enquiring as to the child or children’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.

The Full Court in Walter & Walter [2016] FamCAFC 56 – (‘Walter & Walter’) – at [51] confirmed SPS & PLS insofar as where, as a preliminary matter:

the question of whether a sufficient change in circumstances has occurred ... it is accepted that the applicant’s evidence should be taken at its highest.

In Stern & Colli [2022] FedCFamC1A 95 – (‘Stern & Colli’) – the Full Court confirmed the approach to be taken in these cases when at [35], the Full Court adopted the approach in another Full Court decision of Defrey & Radnor [2021] FamCAFC 67, where at paragraphs [21] and [22], the Full Court said:

The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the rule is a manifestation of the best interests principle. All section 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on section 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his or her parents. There is a focus in an application of this kind upon the changes in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.

The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.

The recent cases of Kaplan & Kaplan [2022] FedCFamC2F 1748 and Swanson & Swanson [2022] FedCFamC2F 1705 confirmed the principles as set out in Rice & Asplund.

If you have concerns about varying parenting orders or setting aside parenting orders, please feel free to contact Longton Legal who have expertise in dealing with parenting matters.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*