COURTS FINDS THAT POSSIBLE DETRIMENT OF LITIGATION TO THE CHILDREN OUTWEIGHED EQUAL SHARED TIME

FINDLAY & REIS

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 425

This case is about a father who filed an application for change to parenting arrangements that were made six years ago.  The Court resolved the issue in accordance with the principles in Rice & Asplund.[1]

Facts:

Mr. Findlay (Father and Applicant) sought orders for the parties’ two children to live with their parents on the equal time, week about basis.  The current arrangement, according to the final orders made by consent on 25 June 2013, is that the children live primarily with the mother and spend time with the father four days a fortnight, half of all school holidays and extra time on special days.  Ms. Reis (Mother and Respondent) resists the father’s application to increase the children’s time with him and asked the Court to dismiss the father’s application in accordance with the principles in the case of Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725.  The Court dismissed the application for parenting orders.

Issue:

Should the Court grant the father’s application for a change to the current parenting arrangements concerning the parties’ children?

Held:

The Rule in Rice and Asplund places an onus on an applicant who seeks variation of earlier parenting orders to satisfy the Court that there has been a change in circumstances since the original order was made, sufficient to require the matter to be re-visited by the Court.[2]  The Full Court of the Family Court of Australia, in the said case, set out the principles which apply when, after final parenting orders have been made, a Court is asked to entertain further parenting proceedings.   

In determining whether further proceedings are justified, a Court is required to reconsider the following circumstances:

(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.

The Court was not persuaded that further litigation would likely result in a substantial change in the children’s arrangements given the high level of acrimony and resentment between the father, on one hand, and the mother and Mr. A, on the other hand.  For the children to live in an equal time arrangement would require a higher level of contact and co-operation between the parties about day-to-day issues than is needed if the children continue to live primarily with their mother and spend only four days with their father each fortnight.  The Court further stated that the negative aspects the children will be required to endure for more than 12 months until a trial can occur outweighs the potential benefit to be derived by the children from the change.  

The potential benefit to the children in developing an even more meaningful relationship with their father is not sufficient to outweigh the potential detriment to the children from the litigation. In a few years, they will each be old enough to determine their own living arrangements in any event. [3]

[1] Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725.

[2] Middleton, Sarah --- "Time for a Change? Shared Parenting, Variation of Orders and the Rule in Rice and Asplund" [2006] FedLawRw 15; (2006) 34(3) Federal Law Review 399.

[3] Findlay & Reis [2020] FCCA 425 (28 February 2020) (78).