James and Bailey

In *James & Bailey* [2011] FamCA 902, the Family Court of Australia considered an application by the mother seeking to change the residence of the parties' twin sons, aged 13½, from their father to herself. The father sought to suspend the mother's time with the children, while the Independent Children’s Lawyer proposed a variation of existing orders to limit the mother's contact in the short term, with a view to progressing to unsupervised contact. The proceedings were marked by a history of intense and unrelenting parental conflict and litigation.

The primary legal issue before the Court was whether a significant change in circumstances had occurred since the last final parenting orders were made in 2008, sufficient to justify re-opening the question of the children's residence. This required the Court to apply the principles established in *Rice and Asplund* (1979) FLC ¶90-725, which dictates that courts should not lightly entertain applications to reverse prior custody orders and must be satisfied that a new fact or material circumstance has arisen that warrants reconsideration of the children's welfare. The Court also considered the application of these principles in light of *SPS and PLS* (2008) FLC ¶93-363, which emphasised that the *Rice and Asplund* rule is a manifestation of the best interests principle and is closely connected to the nature and degree of change sought.

The Court reasoned that the mother had not demonstrated a change of circumstances significant enough to warrant re-opening the residence issue. While the children expressed a desire to live with their mother and father, the Court found these wishes to be consistent with those previously expressed and, at best, ambivalent, more likely indicating acceptance of the current residential arrangements with their father and a desire for increased unsupervised time with their mother. The Court also considered the incident where the children did not return to their father's residence in 2010, concluding that this event, regardless of its cause, did not constitute a significant change justifying a re-opening of the residence question. The Court noted the ongoing underlying family conflict and lack of change in parental dynamics, concluding that a further trial on residence would not serve the children's interests.

The mother's application for orders that the children live with her was dismissed.