- A prima facie case of changed circumstances had been established; and
- That prima facie case was a sufficient change of circumstances to justify embarking on a hearing.
(See Rice and Asplund (1979) FLC 90-725)
Recently that position was reconsidered and re-affirmed in DL & W  FamCAFC 5 (25 January 2012) by the Full Court of the Family Court. In that case the Court held that applicants need to demonstrate:
- The new events are sufficient to warrant a new trial enquiry about the parenting arrangements of the child; and
- The potential benefits to the child from conducting that new enquiry justify the potential adverse consequences.
Accordingly the subject change of circumstances upon which the applicant seeks to rely must be significant, not modest or trivial.
The material seeking to support the Application of such an Applicant will need to clearly demonstrate the following:
- The new events that constitute the subject change of circumstances;
- The significance and magnitude of those new events;
- The potential benefits to the child from conducting the new trial enquiry;
- The potential adverse consequences to the child from conducting the new trial enquiry;
- Why the discretion should be exercised in favour of granting the new trial.
Without this clear and compelling evidence from the Applicant, there will be nothing before the Court upon which the order the Applicant seeks can be made. Courts are notoriously loathe to make orders without supporting evidence. So it is incumbent upon the Applicant to properly prepare and present his case, if he wishes to be succesful.
Should the Applicant fail to make his case and that failure is seen to be significant, the Applicant might find himself visited with a costs order for pursuing an application that was clearly not viable.
Any prospective change of circumstances applicant is encouraged to get good legal advice before embarking upon the application. Proper preparation and presentation of the case is essential to success. After all it is that applicant who has the most to lose.
Ross Bowler LLB