Searson & Searson

In Searson & Searson, the mother appealed against the decision of the primary judge who dismissed her application for different final parenting orders concerning her children. The mother sought to relocate herself and the children interstate and alleged a significant change in circumstances since the making of previous consent orders. The primary judge considered the rule in Rice & Asplund as a preliminary issue and concluded that there was no sufficient change in circumstances to justify a hearing. The mother argued on appeal that the primary judge's conclusion was not supported by evidence and that she had presented a compelling prima facie case of changed circumstances.

The legal issues the court was required to decide included whether the primary judge erred in concluding that there was no sufficient change of circumstances to justify a hearing and whether the mother had presented a compelling prima facie case of changed circumstances. The court found that the primary judge's conclusion was not supported by evidence and that the mother had presented a compelling prima facie case of changed circumstances. The court held that the primary judge should have considered the evidence of changed circumstances before determining whether there was a sufficient change of circumstances to justify a hearing.

The court allowed the appeal, set aside the primary judge's orders, and referred the matter to a different judge for orders and directions to prepare the matter for trial. The court also granted costs certificates to both parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The court held that it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother and the father in respect of the costs incurred by them in relation to the appeal.