A recent decision in the Melbourne registry of the Full Court of the Family Court of Australia dealt with this issue.

The Mother had applied to the Court seeking a variation to final parenting orders that had been made by consent. The Mother wanted to relocate from Melbourne to South East Queensland.

The Mother’s application was made on the basis of a significant change in circumstances.

The primary judge considered the case of Rice & Asplund and dismissed the Mother’s application on the basis that there was no significant change in circumstances.  The Mother appealed this decision.

The appeal was allowed and the Mother’s application has been remitted for rehearing.

The children in this matter were 3 boys – twins aged 7 and another child aged 5. The Mother and Father had entered by consent, final parenting orders. The children lived with the Mother primarily. They spent time with the Father five nights per fortnight. After about two years of this arrangement, the Mother filed her application seeking different orders. The parties and children had been living in Melbourne. The Mother wanted to relocate with the children to South East Queensland.

Rice & Asplund – A preliminary consideration

In order to prevent parents from going back to the court “again and again” to vary parenting orders, the case of Rice & Asplund sets out the requirements for varying parenting orders:

(1)   For a prima facie case of changed circumstances to have been established; and

(2)   For a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.

Is the proposed relocation sufficient?

The Father argued that the Mother did not pass the first threshold. He argued that the Mother had not established a change of circumstances. The Father’s affidavit set out two propositions:

(1)   The Mother and her partner had been in a committed relationship for 2.5 years and were in such a relationship at the time the Mother had entered the consent parenting orders – nothing had changed; and

(2)   The Mother argued that she was in dire financial circumstances. The Father submitted that the Mother’s circumstances remained unchanged from when she entered the consent parenting orders – nothing had changed.

The judge at the initial hearing of the Mother’s application agreed with the Father.

The appeal judge however held that there had been the required change of circumstances, giving the following examples:

• The parties’ agreement had broken down.
• The agreement was based on the parties both living in close proximity in Melbourne. The Mother’s application was seeking she and the children live in South East Queensland.
• Both parties detailed significant difficulties since the consent orders were made. Each asserted the other had failed to comply.
• The Mother detailed the significant financial stress she was under and how the move would give greater financial security.

The appeal judge found that the Mother presented a compelling case that circumstances relevant to the co-parenting of the children had changed since the making of the consent orders.

The appeal judge made comment that the Mother had not simply taken the children from Melbourne. She acted in a considered manner, making an application to the court.

The Mother’s appeal was allowed and the matter was remitted for rehearing.