Terry and Mammone

In *Terry & Mammone* [2013] FCCA 1587, the Federal Circuit Court of Australia considered an application by the father to vary existing parenting orders concerning his time-spent with his two children. The mother sought the dismissal of the father's application. The father's application arose from his relocation from Adelaide to Melbourne, and he sought to increase his time with the children to include all non-Christmas school holidays and three weeks of the Christmas school holidays. The existing orders provided for day-time only contact on two out of three weekends.

The primary legal issue before the Court was whether the father had demonstrated a sufficient change in circumstances to warrant re-opening the parenting dispute, applying the rule in *Rice v Asplund* (1979) FLC 90-725. This rule generally dictates that continuous litigation over children is not in their best interests. The Court was required to determine if the father's relocation and any other alleged changes constituted a significant enough alteration to the circumstances that underpinned the 2011 final orders, particularly in light of the Court's previous concerns about the father's lifestyle instability.

Judge Lindsay reasoned that the father had failed to adequately demonstrate a change in circumstances that justified re-opening the parenting orders. The Court noted that the father's affidavit did not explain the reasons for his relocation to Melbourne, his accommodation arrangements, or his employment status, all of which were critical given the previous judgment's findings regarding his instability and lack of capacity to provide a structured and responsible life for the children. The mother's affidavit raised further concerns about the father's continued instability and lack of commitment, which the father had not adequately addressed. The Court found that while the relocation was a change *simpliciter*, it was insufficient on its own, particularly without further substantiation of his current circumstances and the reasons for the move, to overcome the threshold established by *Rice v Asplund*. The Court also dismissed the father's separate application to amend the child Y's birth certificate.

The Court ordered that the father's application be dismissed, and the mother's response seeking dismissal of the father's application was also dismissed as unnecessary. The existing parenting orders were to remain in operation.