Rice and Asplund –  a discussion of principles

Rice and Asplund –  a discussion of principles

Rice and Asplund

1. 360. There was some disagreement concerning the scope of the principles, and what is commonly known as the rule, in Rice and Asplund.
   361. Rice and Asplund is a seminal decision upon the principles that are to be applied in an application to alter existing parenting orders. The judgment of Evatt CJ, with whom Pawley and Fogarty JJ agreed, established a series of principles to be applied in the determination of applications to alter final parenting orders.
   362. In Rice and Asplund, the Full Court considered an appeal by a husband against an order granting custody to the wife of their seven year old child. From October 1975, a series of interim orders had been made, including following a contested hearing. Initially, the husband was granted custody with the wife to have defined access each week and on certain weekends. Those orders were varied, granting the wife access to the child on three out of four weekends and at other agreed times. The wife’s appeal from that interim order was dismissed and the matter was listed for trial with expedition. At trial, orders were made granting custody to the wife. From those final orders the husband appealed. Thus, the appeal arose from orders reversing custody arrangements that existed under interim orders. Those interim and final orders provided the catalyst for the determination of a point of law as to the principles upon which a party may seek review of a final order for custody.
   363. The respondent wife submitted that the applicant, in order to justify the review of an earlier custody order, must satisfy the Court that there had been a substantial change in circumstances since the earlier order was made: [1978] FamCA 84; (1978) 6 Fam LR 570, 571. Earlier authorities cited for that submission includedMcManus v McManus [1969] 1 NSWR 384 in which Selby J held that, where application was made to vary a custody order made by consent, most substantial grounds were required to be established. His Honour described the applicant as bearing a heavy onus and that “new facts and circumstances [would need] to be revealed before this onus would be discharged.”
   364. Evatt CJ held at 572 that the Court “should not lightly entertain an application to reverse an earlier custody order” identifying finality of litigation as an important consideration which would militate against an over-willingness to review a final custody order. Evatt CJ recognised that finality of litigation operated in a context where change was necessarily a factor in human affairs; that is, the passage of time was an inevitable change and would not suffice in or of itself to support the alteration of final parenting orders. Evatt CJ held that the Court would need to be satisfied by the applicant that “there is some changed circumstance which would 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”: citing Gilder v Gilder (unrep’ SC Vic, 17 February 1967, Barber J); Hayman & Hayman [1976] FLC 90-140 at 75, 680 (Murray and Lusink J). The emphasis of language employed by Evatt CJ linked the requirement for some changed circumstance as being sufficient to justify the taking of ‘such a serious step’ to permit reopening of orders.
   365. The Chief Justice also recognised that the way in which those principles applied and the particular factors that may justify a Court in reviewing a custody order would vary from case to case. Further, her Honour held that once the Court had made a finding that there was some new fact or circumstance sufficient to review the earlier order, the issue of custody was to be determined in the ordinary way, having regard to the interests of the child as the paramount consideration. The Full Court also held that these principles would apply whether the order had been made by consent or following a contested hearing: 572.
   366. Accordingly, a threshold issue for a Court is to determine whether the applicant has demonstrated that there are circumstances which require the Court to embark on the serious step of reconsidering how the welfare of the child should best be served. The Full Court also held that where application is made to alter an earlier order, particular factors requiring consideration include: (1) the length of time the child has been in a particular situation; (2) any earlier decision of the Court and the reasons for that decision; (3) the possible advantages or disadvantages of a change in custody.
   367. As concerned the necessity for the Court to consider any earlier order, any reasons for judgment and the material on which the order was made, the Full Court also held that while weight should be given to the earlier decision (particularly, any findings of fact), the Court was not bound by the earlier assessment of the parties or views as to the child’s best interests (these matters not being amenable to a fixed or absolute assessment which remained static for all time).
   368. Evatt CJ’s application of those principles upon the facts presented in Rice and Asplund is instructive. First, her Honour considered that no error was disclosed by the primary judge having postulated the test for revisiting parenting orders as requiring the applicant to demonstrate that some significant change had occurred since the original orders were made. Secondly, it was accepted that a parties’ remarriage or more stabilised living arrangements may constitute a sufficient reason for re-opening custody issues but would not necessarily provide a decisive reason to grant relief – consideration of all factors remained relevant.Thirdly, the submission was rejected that a judge should not substitute his view of the parties for that of the original Court without having substantial reasons for doing so. Fourthly, instead, the Court was entitled to form its own views of the parties once circumstances had been demonstrated which justified the re-examination of the custody issue. Fifthly, the Court should consider what weight should be attached to the status quo which obtained as a result of the existing orders. Status quo was, however, a factor of variable quality that fell to be weighed in the balance with all other factors. Sixthly, while it might be perfectly understandable that a parent might wish to see more of a child, this was not a sufficient basis for interfering with a discretionary order which regulated existing access arrangements. Seventhly, Evatt CJ recognised a distinction between a change in custody from a change in access arrangements.^[5]

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