Mullane and Burnham

The case of *Mullane and Burnham* concerned an application by the father to vary an earlier parenting order. The dispute was heard by McClelland J in the Family Court of Australia.

The primary legal issue before the court was whether the father's application to vary the existing parenting order should be entertained, or if it should be dismissed based on the principles established in *Rice & Asplund*. This involved determining whether there had been a sufficient change in circumstances since the making of the earlier order to justify a fresh inquiry into the parenting arrangements.

McClelland J applied the principles from *Rice & Asplund*, which dictate that courts should not lightly entertain applications to reverse earlier custody orders. The court must be satisfied that there is a significant changed circumstance, a new factor, or a previously undisclosed material factor that would justify such a serious step. This principle is underpinned by the need for finality in litigation, particularly in child custody disputes, to avoid ongoing litigation that can cause significant psychological harm to both parents and, crucially, the child. The court also considered the paramountcy of the child's welfare, as enshrined in section 60CA of the Act, and noted that stability in children's lives is an essential prerequisite to their well-being. The application of the *Rice & Asplund* rule, whether as a preliminary matter or at the conclusion of a hearing, is a manifestation of the best interests principle, requiring an assessment of the evidence against the principles in Part VII of the Act.

The father's Initiating Application was dismissed. The court then made orders regarding the filing and service of written submissions on the issue of costs, with any judgment on costs to be determined on written submissions in chambers.