Rice v Asplund

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is a parenting matter concerning three children, X, aged nine, and twins Y and Z, aged eight years old ("the children").
2. This is a review of a decision made by Senior Judicial Registrar Malinowsky on 4 September 2025, which permitted the father to revisit final parenting orders made by Justice Hannam on 18 April 2023, as amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) on 23 May 2023 ("the final orders"). These orders provided for no time between the father and the children.
3. Being a review hearing, it is a hearing de novo.
4. Order 3(b) of the final orders purported to restrain the father from reopening parenting proceedings unless he had fulfilled certain conditions. These conditions included providing eight clean hair follicle tests (every three months over a 24-month period), alongside a report from his treating therapist confirming that he had engaged in at least 12 months of therapy, pursuant to order 3(d). Whilst these orders are ultra vires, they are indicative of what the court intended ought to happen before it would be in the best interests of the children for the final orders to be reconsidered.
5. The father says that he has now addressed both his drug and mental health issues and seeks pursuant to section 65DAAA of the Family Law Act 1975 (Cth) ("the Act") to reopen parenting proceedings.
6. The re-opening of the matter is heavily resisted by the mother.

1. The full background of this matter is set out in the judgment of Justice Hannam dated 18 April 2023, and I shall not repeat it here.
2. In short, the parties were in a relationship between 2012 and 2019. Final separation occurred on 16 June 2019.
3. After separation, the father initiated proceedings in this court in 2019 to spend time with the children. During the course of the first tranche of proceedings, which occurred between 2019 and 2023, concerns were raised about the father's drug use and consequently he was ordered to do hair follicle testing.
4. The father provided various hair follicle tests, which showed he was negative for illicit substances. As a result, his time progressed from supervised to unsupervised time.
5. The mother subpoenaed the pathologists who conducted the father's hair follicle testing, and it came to light that the father had forged all of the tests. The father conceded this had occurred and that he had mislead the mother, the Independent Children's Lawyer ("ICL"), the family report writer, and the court.
6. In addition, the father had sought to change his name at a sexual health clinic so as to create an entirely new file not available to the mother or the ICL. This was relevant because it was common ground that the father would engage in risky sexual activity when under the influence of illicit substances, sometimes in the family home, and on at least three occasions when the children were in the home.
7. The children have not spent time with the father since May 2022.

1. The father relied upon the following documents:
   • his amended initiating application filed 1 August 2025;
   • his affidavit filed 1 August 2025;
   • the affidavit of Ms D, the father's partner filed 1 August 2025;
   • the affidavit annexing the report of Dr E ("Dr E") filed 1 August 2025;
   • the affidavit annexing the report of Dr F ("Dr F") filed 1 August 2025; and
   • his case outline filed 12 November 2025.
2. The mother relied upon the following documents:
   • her response to initiating application filed 28 May 2025;
   • her affidavit filed 14 August 2025;
   • her notice of child abuse, family violence or risk document filed 28 May 2025;
   • her case outline document filed 12 November 2025;
   • the affidavit of Dr G ("Dr G") filed 17 October 2025, which the court granted the mother leave to rely upon; and
   • the reasons of the Honourable Justice Hannam in Lazzari & Lazzari [2023] FedCFamC1F 286.

1. Section 65DAAA of the Act codified "the rule" in Rice v Asplund (1979) FLC 90-725 below:

(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:

(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

(2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:

(a) the reasons for the final parenting order and the material on which it was based;

(b) whether there is any material available that was not available to the court that made the final parenting order;

(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);

(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

(3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.

(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.

1. Pursuant to the case of Radecki & Radecki [2024] FedCFamC1A 246, it is still good law that the court must find both that there has been a significant change of circumstances and that it would be in the children's best interests to reopen proceedings.
2. The best interests of the children remain the paramount consideration.
3. Section 60CC of the Act sets out the matters the court is to take into account when assessing best interests these include:

Determining child's best interests

(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child - also consider the matters set out in subsection (3).

General considerations

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

1. The court must also consider, pursuant to section 60CC(2A) of the Act, any history of family violence, abuse, or neglect involving the child or a person caring for the child, together with any family violence order that currently applies to, or has previously applied to the child, or a member of the child's family.
2. Section 60CG of the Act further requires a court, when considering what parenting order to make, to ensure that whatever order is made does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
3. I have taken all of these matters into consideration, although I may not specifically refer to each of them.
4. Furthermore, the authorities are clear that if one of these matters is determinative then the court need not go through each of them. In this case, the risk the father poses through his long-term drug use and associated sexual activity remains central. These risks go hand in hand with the father's deceptive behaviour.
5. The father asserts, as he did in the previous proceedings, that he is drug free. He also says he has attended upon a mental health practitioner for regular treatment. It was conceded for the father that the court can understandably place no weight on the father's own assertions, and that his credibility has all but been destroyed due to his past behaviour. Accordingly, the results of the hair follicle tests have been sent directly from the pathologists doing the testing to the mother's solicitor.
6. The tests span from 2023 to 2025. Whilst in some cases they are slightly out of the time frame, they are more or less about every 3 months. All tests were negative except for one test in January 2024 which was positive for methamphetamine.[1] The father says this is a false positive.[2] As the father has no credibility I must turn to the objective evidence.
7. The father provided a copy of his hair follicle test results to a toxicologist, Dr F, and questioned whether the medication he was taking could have affected the result. He also questioned whether the result could have been impacted by contamination. Dr F recommended a further sample be tested at a different laboratory. The father sent this sample to the second laboratory the following day and the results were said to be negative. It is unclear to me whether the results from the laboratory were sent directly to Dr F. If not, given the history in this matter, there are obvious problems relying on this sample. However, leaving aside this issue, Dr F was of the opinion that if the January 2024 sample was a true positive you would expect to see positive results in the samples taken either side of that result, as the testing periods overlapped. Dr F concluded, in his opinion, that external contamination was the more reasonable explanation. In his opinion, this was further supported by the failure of the test to show the metabolite of methamphetamine, being amphetamine.
8. The mother being no doubt sceptical about this opinion, in which the father and Dr F appear to have workshopped reasons for the positive test, sought the opinion of another toxicologist, Dr G. Dr G disagreed with the opinion that an armpit hair sample was likely to be contaminated, as the location of the hair by its nature provides protection. Dr G also explained that the cut off levels in the testing had not been high enough to detect amphetamine, which can exist in varying levels, and that different cleaning techniques used by laboratories may have removed the amphetamine from the sample, and/or it may have been removed during the cleaning of underarms. However, Dr G did not address the issue raised by Dr F as to the expectation that the other samples should also have contained methamphetamines as the time periods crossed over.
9. Taking the father's evidence at its highest, as I am urged by the authorities to do, I cannot eliminate the possibility the January 2024 sample was contaminated. Indeed, if Dr F's evidence is accepted it is quite possible. In such circumstances, the father would have provided nine clean hair follicle tests from 31 July 2023 until 11 April 2025.
10. In addition, although the submissions centred on the father's drug use, the father has attended upon a psychiatrist, Dr E, since May 2022. At the date of his report, the father had seen him on 37 occasions. Dr E who appears to have been apprised of the risks the father poses, is of the opinion the father has made "excellent progress with respect to substance abuse" and "appears to have benefited greatly from the above interventions, in terms of insight into his narcissistic tendencies and their impact on others".[3]
11. Taking the father's case at its highest, he appears to have largely addressed the "preconditions" required of him by Justice Hannam (noting again they are not binding on the court). I am satisfied this constitutes a significant change in circumstances.
12. However, that does not mean it is in the children's best interests to put them through another set of proceedings. Reopening this matter would likely cause the mother significant stress, as well as financial hardship, which may have a flow on effect to the children. In this regard I note the father has not paid the cost order for the mother's costs of the previous proceedings.

1. This is a finally balanced case. The mother's counsel proffered strong arguments for why the matter should not be reopened. They were very persuasive, in particular the submission that the best predictor of future behaviour, is past behaviour. In this case, the father has a long history of drug use, risky sexual activity and deception. However, the impact of not having a relationship with a father is well known to the court. Indeed, it was identified in the judgment of the Honourable Justice Hannam, Lazzari & Lazzari [2023] FedCFamC1F 286, at [217]:

When asked about the impact upon the children if the Court were to order that they have no time with the father the expert said that the literature (research) is unequivocal that "children wherever, possible, do need both parents in their lives in some way". The expert explained that from the children's point of view "no contact" means that a parent disappears and that to date it appears that the children have had a good time with their father. She expressed concern that the children would exhibit some difficulties if the father was to suddenly disappear altogether from their lives and if they had no real ability to process or reason through why that may have occurred. The expert explained that this could be exhibited in behavioural difficulties for the children or they could internalise it and develop an anxiety reaction. Further, she explained that where children have enjoyed time with a parent which suddenly stops that a child can begin to idealise the missing absent parent which can lead to the other parent being blamed by the children for that occurring which can impact the relationship with that parent. The expert described these matters as the extreme end of potential of difficulties for children.

(Emphasis added)

1. Whether or not the positive screen in January was a false positive or not, the father has shown that he has abstained from drug use for at least 22 months, and on his case at its highest, significantly longer. He has also maintained a commitment to addressing his mental health. I am satisfied that it is in the best interests of the children that the court considers whether the father should now spend any time with them.
2. In the end, the father may not be able to demonstrate ongoing abstinence. He has a long drug history and recovery from methamphetamine use is often a very difficult task. However, I find the risk to the children of not having their father in their lives at this current time outweighs the detriment of putting the children through further litigation.
3. For all of these reasons, the application for review will be dismissed, and the orders of the Senior Judicial Registrar made on 4 September 2025 will remain in full force and effect.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dorrat.

[1] Father's affidavit filed 1 August 2025 ("Father's August affidavit") at p.153.

[2] Father's August affidavit at [20].

[3] Affidavit of Dr E filed 1 August 2025 at p.10.