Searson and Searson

[2016] FCCA 3195

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEARSON & SEARSON [2016] FCCA 3195

Catchwords:
FAMILY LAW – Rice & Asplund argument – determined as preliminary issue – final consent orders made in May 2015 on the first day of the final hearing – mother seeks to relocate – circumstances largely existed at time of final hearing.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Marsden & Winch [2009] FamCAFC 152

Miller & Harrington [2008] FamCAFC 150

Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16

Applicant: MS SEARSON

Respondent: MR SEARSON

File Number: MLC 4487 of 2014

Judgment of: Judge Harland

Hearing date: 6 December 2016

Date of Last Submission: 6 December 2016

Delivered at: Dandenong

Delivered on: 9 December 2016

REPRESENTATION

Counsel for the Applicant: Ms Sudholz

Solicitors for the Applicant: Coote Family Lawyers

Counsel for the Respondent: Ms Brennan

Solicitors for the Respondent: Westminster Lawyers Pty Ltd

ORDERS

1. The application filed 5 September 2016 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Searson & Searson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 4487 of 2014

MS SEARSON

Applicant

And

MR SEARSON

Respondent

REASONS FOR JUDGMENT

1. The mother seeks to relocate to the (omitted) in Queensland. The father says that the rule in Rice & Asplund applies to the circumstances of this case and that the mother should not be allowed to relitigate.[1]

   [1] (1979) FLC 90-725 (“Rice & Asplund”).

2. The parties entered into consent orders on the first day of the final hearing on 25 May 2015.

3. The parties have three children, eight year old twins, X and Y born (omitted) 2008, and six year old Z born (omitted) 2010 (“the children”).

4. The mother relied on three affidavits she prepared and filed on 5 September 2016, 17 October 2016 and 1 December 2016 as well as an affidavit by her mother and her partner Mr J.

5. The respondent father relies on his affidavit filed on 17 October 2016 and affidavits by his parents.

6. The father argues that there is no change of circumstances.

Discussion of legal principles

1. The rule in Rice & Asplund is well-known. In that case, the Full Court of the Family Court of Australia had to consider what principles should apply when a court is faced with an application to change an earlier parenting order. Evatt CJ said the following:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order into the reasons for material on which that order was based. 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…