Time for a Change? Shared Parenting, Variation of Orders and the Rule in Rice and Asplund

AuthorSarah Middleton
Published date01 September 2006
Date01 September 2006
Subject MatterArticle
Sarah Middleton*
In July 2006, the Family Law (Shared Parental Responsibility) Act 2006 (Cth) ('the SPA')
came into operation, effecting wide-sweeping reforms to the Australian family law
system. The reforms included amendments to Part VII of the Family Law Act 1975 (Cth)
('the FLA') that seek to promote parental involvement with children and arrangements
for equal or substantial shared care.1 While these changes apply to new orders made
on or after the commencement of the legislation,2 in the case of applications for
variation of existing orders, the changes only apply if the applicant can show some
significant change in circumstance since the time of the making of the original order.
This threshold requirement of changed circumstances is known as the rule in Rice and
Asplund ('the Rule').3 This Rule has been in operation for more than 25 years and its
continued application has been expressly provided for in Schedule 1 Part 2 of the SPA.
In this way the Government, acting upon concerns expressed by the Family Court,4
hopes to contain any increase in applications for variation.5
This state of affairs is likely to provoke criticism from men's groups, as well as
individuals, who will argue that the application of the Rule goes against the general
spirit of the SPA reforms and, in particular, the object of ensuring that children have
the benefit of meaningful involvement with both parents to the maximum extent
consistent with their best interests.6 Put simply, the argument will be that a policy
which encourages parental involvement and time with their children does not sit well
* (Dr) Sarah Middleton - BA/LLB (Hons), PhD, Law Lecturer, Monash University. The
author would like to thank Richard Ingleby and Adiva Sifris for their insightful thoughts
and comments.
1 FLA ss 60B(1)(a), 60CC(2)(a), 65DAA.
2 This includes applications filed prior to the commencement of the legislation. See SPA sch
1, pt 2.
3 (1978) 6 Fam LR 570.
4 Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on
Provisions of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (24 March
2006) 44.
5 Attorney-General's Department, Government Response to Recommendations of the Senate
Legal and Constitutional Legislation Committee Report on the Family Law Amendment
(Shared Parental Responsibility) Bill 2005, 11 May 2006, 7.
6 FLA s 60B(1)(a).
400 Federal Law Review Volume 34
with a Rule that only enables a court to increase a parent's involvement and time if
there has been an intervening change of circumstance.
Anticipating this debate, this article explores the question of whether the policy
objective of encouraging equal or substantial time-sharing can, or cannot, be reconciled
with the requirement to establish changed circumstances where an application for
variation is sought. In order to address this question some background understanding
of the nature and operation of the Rule is required. Accordingly, and in the absence of
any prior academic literature describing the Rule,7 Part I commences by explaining
how and why the Rule applies; the reported case law principles that govern its
operation;8 and the nature of the relationship between the Rule and the merits of a
case. Part II then examines the SPA provisions for shared-care and their underlying
policy justification; why the Rule will continue to apply to applications for variation;
and whether this continued operation can be justified in light of the statutory mandate
in making parenting orders to have regard to the best interests of the child as the
paramount consideration.
1.1. The basis for the Rule
When a marriage or de facto relationship breaks down, arrangements need to be made
for the future parenting of any children of the relationship. Parents unable to arrive at
an agreement may seek the assistance of the Family Court.9 Their dispute may concern
with whom the child is to live; the times at which or degree to which a child is to spend
time with a parent; and/or who is to make decisions in the short term and long term
best interests of the child (formerly 'residence', 'contact' and 'specific issues'
respectively).10 In such cases the Court may be called upon to make a 'parenting
order'.11 Even in cases where parties are able to negotiate their own arrangements,
they may wish to formalise their agreement by seeking parenting orders by consent.12
In both situations, the Family Court has the power to make such parenting order as it
7 Only incidental reference is made to the rule. See Richard Chisholm, '"The Paramount
Consideration": Children's Interests in Family Law' (2002) 16 Australian Journal of Family
Law 87; Peter McManus, 'Guidelines in Family Law: Rules by Another Name? (2001) 15
Australian Journal of Family Law 51.
8 There are 22 reported cases that have considered, refined and applied the threshold test set
down by the Full Court.
9 Since 2000, parties have also been able to file for orders in the Federal Magistrates Court
which shares jurisdiction with the Family Court in respect of matters arising under Part VII
of the FLA (s 69H).
10 Although the SPA makes redundant the terms 'residence' and 'contact', for the purposes of
this paper these terms will be used interchangeably with the new terminology of 'lives
with' and 'spends time with'. The reason for this is that all of the case law discussed in this
article is pre-SPA and thus utilises the former terminology. Further to this, in the
discussion of cases decided prior to 1996, the term 'custody' may be used instead of
'residence' and 'access' instead of 'contact'.
11 FLA s 64B(1).
12 This is done through the filing of an Application for Consent Orders. The orders are
typically approved by a Registrar.

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