A commonly referred to parenting case, Rice & Asplund 179 FLC, set an important precedent that a finalised parenting case ought not be reopened unless the Court is satisfied that there has been a significant change in circumstances. The change does not need to be so significant that it would clearly result in a change to the orders, however the change or fresh circumstances must demonstrate a real likelihood of change being made to the orders.
So, in what circumstances has the Court found that there has been a significant change of circumstances?
The relocation, or proposed relocation of a parent is a common basis upon which the Court will permit reopening of proceedings. In the case of Stern & Colli [2022] FedCFam C1A 95, at the time that final orders had been made by the (then) Federal Circuit Court of Australia in 2017, the Father had been living approximately four hours from the child, who lived primarily with the mother. He sought to reopen proceedings in 2020, after he had relocated such that the distance between the Father and the child was reduced to a 40-minute drive. The Father’s application to reopen was dismissed, however on appeal, the Full Court of the Federal Circuit and Family Court found that the Father had demonstrated sufficient reasons to reopen the parenting case. The matter was remitted for hearing.
In the case of Shan & Prasad (2020) FLC, the Court at first instance dismissed the Father’s application to reopen proceedings. The Father had relied on new psychiatric evidence demonstrating the improvement in his mental health. On appeal, it was found that the evidence adduced by the Husband was sufficient to warrant the reopening of proceedings.
In the case of Westlake & Westlake [2019] FamCA 563, the Father’s application to reopen proceedings was dismissed. Final Orders had been made providing for the Father to have only supervised time with the children. He subsequently relied on evidence obtained from a psychologist, asserting that such evidence demonstrated an improvement in his mental health such that a reopening of proceedings was warranted. The Father’s application was dismissed, with reference to other expert evidence which showed the Father’s “personality with obsessional and narcissistic traits which are very well developed which do not equate to being a mental illness which can be treated”. Those findings satisfied the Court that there was no change in the Father’s fixed views of the Mother to justify reopening the proceedings.
The change resulting from passage of time has been a circumstance in which the Court will consider reopening proceedings. A common example of this would be when orders are made for an infant, such that there is no provision for the child to have overnight time with one parent. Of course, over time, those orders become restrictive and no longer support the best interests of the child.
If there are allegations of physical or emotional harm or abuse, sufficient for the Court to be satisfied that there is risk of harm, the Court has reopened proceedings.
Parties may also make Orders by consent in recognition of a change in circumstance, however it remains open to the Court to refuse to reopen proceedings, or make further orders by consent, if there is not a sufficient change in circumstances.
Ultimately, the Court needs to determine whether it is appropriate to reopen a case based on the particular facts in each case. A change in a party’s geographical location or simply the passage of time may or may not demonstrate a change in circumstances adequate to justify the reopening of parenting proceedings.
For this reason, it is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. Contact Robinson + McGuinness to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Margot McCabe