CASTON & CASTON

In the matter of *Caston & Caston*, the applicant father sought to vary final consent parenting orders concerning the parties' two children. The respondent mother sought the dismissal of the application. Previous consent orders had been made in 2015 and subsequently varied in 2018 to increase the children's time with the applicant father. In 2020, the applicant father sought the discharge of all previous orders, a change of residence, and liberty to particularise further orders pending a family report.

The court was required to determine whether to dismiss the applicant father's application to vary final parenting orders, applying the principles established in *Rice & Asplund*. This involved considering whether a substantial change in circumstances had occurred since the making of the final orders, and whether re-litigation would be contrary to the best interests of the children. The court also had to consider the primary and additional considerations under section 60CC of the *Family Law Act 1975* (Cth) in assessing the merits of the application at a preliminary stage.

Judge A Kelly reasoned that the court is obliged to take the applicant's evidence at its highest when considering a preliminary issue. The court noted that policy considerations favour the finality of litigation, as re-litigation is inimical to the best interests of children. While the applicant's circumstances had changed to include a new spouse and child, the court found that the applicant's evidence was largely comprised of criticisms of the respondent mother's parenting. The court considered that the benefit to the children of having a meaningful relationship with both parents, a primary consideration under s 60CC(2)(a), was not necessarily promoted by a change of residence given the applicant's apparent antipathy towards the respondent. Furthermore, the need to protect children from harm, under s 60CC(2)(b), was relevant given that equal shared care arrangements necessitate close cooperation, which appeared unlikely given the criticisms levelled. The court concluded that it was appropriate to consider the application by way of a preliminary determination.

The court ordered that the Initiating Application filed on 20 March 2020 be dismissed. The parties were directed to file and serve any submissions as to costs within fourteen days, and any question of costs was to be agreed or decided on the papers.