MOTHER SEEKS TO RE-LITIGATE FINAL PARENTING ORDERS
Belden & Lamkey [2020] FCCA 2499 (9 September 2020)
This case involves the mother seeking to re-litigate final parenting orders on the basis that there has been significant change of circumstances pursuant to the principle laid in the case of Rice & Asplund
Facts:
- The respondent mother seeks to re-litigate the final parenting orders made on 15 November 2018 and 5 December 2018 on the basis that there has been a significant change of circumstances pursuant to the principles referred to in Rice & Asplund [1978]. The father argues there has been no change of circumstances and points to the orders themselves which specifically address the steps the mother must take before engaging in further parenting proceedings.
- The mother’s Counsel submits that the father’s alcohol abuse, his recent time spent in the police cells and the children’s disclosures amount to a sufficient change of circumstance to vary the final orders.
- The father’s Counsel argues that the children have been the subject of litigation since 2009. It is evident that the parties’ relationship has been fraught with issues and the children have gone back and forth between the mother and the father. It is not in the children’s best interests to continue to litigate this matter after such a short period of time since the most recent final orders were made. It is not in the children’s best interests to be subjected to interview processes and the stress of proceedings.
Moreover, the mother is seeking to re-litigate the matter without first complying with the requirements set out in the final orders. This submission carries great weight considering there is a clear pathway in the orders for the mother to obtain what she is seeking in her current response. Re-litigating the matter early not only renders the above consent orders nugatory, but also affords the mother an opportunity to circumvent the specific requirements she is required to satisfy before a further application can be brought.
Issue:
Did the mother present significant change of circumstance which entitles her to the re-litigation of the final parenting orders?
Legal Basis:
- The principle in Rice & Aspluns states that: “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.”
Analysis:
The father’s drinking is not a new issue. Much of the evidence in the mother’s affidavit filed in relation to the father’s drinking pre-dates the final orders and was also before the Court when the final orders were made. The father’s drinking was a live issue when this matter was last before the Court and the mother has not demonstrated a material change in the circumstances of the children.
It is not in the children’s best interests to continue to litigate this matter after such a short period of time since the most recent final orders were made. It is not in the children’s best interests to be subjected to interview processes and the stress of proceedings.
Conclusion: The court is not satisfied that the mother has established a change of circumstances. The application shall be dismissed.
