Weekly Snapshot Issue: 43 – 30 August 2019

Case we’re reviewing…

You sigh a ginormous sigh of relief as your family law parenting matter comes to an end and final orders are made by the court. And then you hear about the prospect of an Application for Variation of Orders and begin to fear that the nightmare of litigation will be replayed…

The case of Rice & Asplund [1978] explores this issue in depth. The Full Court of the Family Court decision in this case calling for a threshold requirement of changed circumstances is now known as the Rice & Asplund Rule. The case recognises that parenting orders are never final. They may be varied with the consent of the parties or via court intervention. Where a variation is sought however, the applicant must satisfy the court of “substantial change”, startling new circumstances’; sufficiently weighty new facts and circumstances’; or material changes in circumstances

This Rule applies whether the earlier orders were made after a defended hearing or made by consent, and the purpose is to prevent a party from re-litigating in the hope of obtaining a more favourable exercise of the courts’ discretion in the fresh trial.

Chief Justice Evatt, with whom Pawley SJ and Fogarty J agreed, summarised the Rule in these terms:

[The court] 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 … 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 two broad categories of change that can be relied upon the applicant is where there was a material factor that was not disclosed when the previous orders were made. This category is rarely relied upon when orders are made by the court following a hearing. Relevant non-disclosure (such as non-disclosure by one parent of the other parent’s abusive behaviour/family violence) is likely to be relied upon in cases where parenting orders were made by consent.

The second and more commonplace category of change relates to evidence of new circumstances that have arisen since the making of the original orders. The “change” can relate to multiple parts or can rely on one single but major change.  The court must satisfy itself however on a preliminary basis that there is a real likelihood of variation of the orders if the change or fresh circumstances are taken into account (as explained by Justice Collier in King v Finneran).

The difficulty with the Rule in Rice v Asplund is that “change” in and of itself is an inherent part of life. The lives of children are especially susceptible to change (as they mature from baby, toddler, adolescent and adult). Change itself is not the criterion (because then such a low threshold would be easily satisfied in each case and therefore rendered meaningless. The Court requires “significant change”. The difficulty however is that “significant change” cannot easily be defined and as such introduces an element of arbitrariness’. As seen from multiple cases following Rice & Asplund; what the court may deem “significant change” in one case may not be material in another.

The Rule has faced other criticisms, especially following the introduction of the presumption of shared care; however, that will be for another review!

Latin phrase we’re embodying in our every day life…

“In Omnia Paratus”
Ready for anything.

Advice we’re heeding…

“Finding yourself” is not really how it works. You aren’t a ten-dollar bill in last winter’s coat pocket. You are not lost. Your true self is right there, buried under cultural conditioning, other people’s opinions, and other inaccurate conclusions you drew as a child and adult that became your beliefs about who you are. “Finding yourself” is actually returning to yourself. An unlearning, an excavation, a remembering who you were before the world got its hands on you”.

  •  – Emily McDowell

Coffee brewing method we’re trialling…

It’s no secret we’re caffeine addicts. Our home & office kitchen is filled with coffee brewing apparatus; from the long handled copper cezve for Turkish Coffee, to the American style plunger and the fancy coffee machine with the bells & whistles, we collect the equipment in the hope of brewing the perfect well rounded cup of coffee to hit the spot. Our latest experiment has been with the Italian Moka Pot – which is a stove-top coffee maker that brews the coffee by passing boiling water pressurised by steam through ground coffee. The result is a smooth coffee without the bitterness that can tinge over brewed coffee beans.

Masters of Success…

We salute the O.G Snoop Dog in this weeks’ Masters of Success… never have wiser words been spoken…

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