Family law practitioners may be well acquainted with the significance of the Rice and Asplund case when seeking to vary parenting orders. Mark Youssef, partner at Unified Lawyers and Accredited Specialist in Family Law, provides valuable insights into this fundamental threshold test, its practical application, and considerations for legal practitioners navigating this complex area.
Understanding the "Significant Change in Circumstances" Test
When asked about what constitutes a "significant change in circumstances" under the Rice and Asplund test, Youssef explains that the seminal 1979 case didn't provide a definitive list.
"The decision in Rice and Asplund did not provide a list of what constitutes a significant change in circumstances. Rather, it indicated that an applicant seeking to revisit parenting orders would need to satisfy the court, citing with approval the earlier Full Court decision of In the Marriage of Hayman (1976) 14 ALR 216, that 'there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material'," Mark explains.
Further to this the court in Rice and Asplund went on to say: 'These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served…'
How do courts approach this test?
On how courts balance risks against benefits when considering modifications, Youssef notes that judicial approaches may vary, but the legislation is clear regarding priorities.
"The willingness to favourably reconsider an application to vary existing parenting orders, can prove different from one judicial officer to another; however, the legislation is clear in that, when deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration, pursuant to Section 60CA,” Mark says.
“Rice and Asplund reaffirmed the principle when it said the court should 'weigh up the factors for and against the proposals for each party, having regard to the welfare [best interests] of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reason for that decision. The possible advantages or disadvantages of a change of custody need consideration along with all the other usual factors'."
When it comes to persuasive evidence, Youssef explains what is most prudent.
"The strongest, most persuasive evidence, as in all cases, whether for or against, is typically that which is supported by extrinsic documents (such as emails, text messages and other communications) and/or possibly expert opinion, rather than simple 'he said / she said' lay opinion evidence of the parties."
Recognising valid grounds for Order Variation
Some examples that might satisfy the Rice and Asplund threshold include relocation, significant changes in parental capacity, or the expressed wishes of mature children. When asked to elaborate on these examples and how courts have explored them in practice, Youssef shared his own experience.
"There is no exhaustive list of what may constitute a required change of circumstances; however, it again comes down to what is deemed to be in the best interests of children. If sufficient time has passed since existing orders were made, and the non-resident parent has not been taking up the opportunity to spend time and communicate with the children, an order that allows the primary carer to take up better or more lucrative employment elsewhere that will benefit the living circumstances of the family, may well pass muster with the court to allow a relocation with the children.”
“Alternatively, as children get older, especially when they reach their teenage years, their views are typically given greater weight. If sufficient time has again passed and the primary carer blocks the children from spending more time with the other parent, the changing developmental and emotional needs of the children may be best served by the court reevaluating their best interests."
Application to different Order Types
When asked about how the application of Rice and Asplund differs when dealing with interim orders versus final orders, Youssef provides clarification.
"The rule in Rice and Asplund can be applied at any stage of the proceedings, whether dealing with interim or final parenting orders. When it comes to final orders, however, the rule has in effect been codified in Section 65DAAA of the Family Law Act 1975, in respect of which the Full Court in Radecki & Radecki [2024] FedCFamC1A 246 has basically reaffirmed the same requirement of finding a significant change in circumstances to enable the court to press ahead and somehow disturb the existence of current parenting orders."
Key considerations for practitioners
Youssef offers practical advice for lawyers who don't regularly practice family law when preparing a Rice v Asplund argument. His advice is as follows:
When seeking a variation of final parenting orders - or indeed interim orders - two main things should be kept in mind:
(1) Do not do so hastily. Let many months, if not longer, pass by because, unless it is something acute, urgent or safety related, it is not on the face of it arguable that a significant change in circumstances has occurred if only a short time has elapsed.
(2) Do not do so if your client, as the applicant, simply does not like the existing orders anymore or perhaps never did. When parenting orders are made, the rule in Rice and Asplund is couched in the default assumption that it is in a child's best interests not to subject them to further litigation, unless there has been a significant change in circumstances since the existing set of orders were put in place.
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