Can a final parenting order be changed?

Reconsideration of final parenting orders - Codification of ‘Rice v Asplund’ and the interpretation of s65DAAA of the Family Law Act

Parenting orders are made on a final basis by the Federal Circuit and Family Court of Australia by consent of the parents or after a final parenting hearing (“final parenting order”). A final parenting order sets out the parenting arrangements for the child/ren until they attain the age of 18. Although these orders are intended to be ‘final’, a final parenting order can be reconsidered, varied or amended in limited circumstances.

A parent who wishes to vary or release a final parenting order must first establish that there has been a significant change in circumstances to warrant a change to the final parenting order. This is the common law principle established in the decision of Rice and Asplund [1978] FamCA 84 and is known as the rule in Rice and Asplund. The application of the rule ensures that parents do not engage children in endless litigation in the pursuit of a more favourable parenting outcome.

In accordance with the rule in Rice and Asplund, if the court is satisfied that there has been a significant change in circumstances, it must then consider whether it is in the best interests of the child or children to alter a final parenting order. In the absence of a finding that there has been a significant change in circumstances, the court cannot discharge or vary a final parenting order.

On 6 May 2024, amendments to the Family Law Act 1975 came into force (in the form of the introduction of section 65DAAA), the effect of which was to codify the rule in Rice and Asplund. This amendment contains wording that threw into question whether this also could be interpreted as a “watering down” of the rule which could possibly open or re-open the floodgates to many more change applications.

Ultimately it was determined that the Rice and Asplund rule still stands and that courts still need to be satisfied of a significant change in circumstances before a final parenting order will be reconsidered.

Legal aspects of the Family Law Act amendment

The amendment saw the introduction of section 65DAAA as follows:

Section 65DAAA

(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.

Since the introduction of s65DAAA, there has been confusion amongst judges of the court as to whether s65DAAA was a simply a codification of the rule in Rice and Asplund or whether it abandoned the threshold requirement for a determination of a significant change of circumstances before reconsidering a final parenting order.

In Whitehill & Talaska [2024] FedCFamC2F 768, Judge O’Shannessy adopted the literal interpretation of the word “consider” in s65DAAA and concluded that the court was only required to consider whether a significant change had occurred and it was not necessary to make a finding that a significant change had or had not occurred before a final parenting order could be reconsidered. It was therefore open to the court to reconsider final parenting orders if it was in the child’s best interests to do so.

Justice Altobelli similarly adopted a literal interpretation of the word “consider” in the decisions of Rasheem & Rasheem [2024] FedCFamC1F 595 (“Rasheem”) and Melounis & Melounis (No 4) [2024] FedCFamC1F 778 (“Melounis”). His Honour opined that the legislation “is clearly a deviation from the rule in Rice and Asplund that mandated a finding of significant change in circumstances.” Accordingly, “for the purposes of s65DAAA, the court must simply consider whether circumstances have significantly changed since the final parenting orders were made, but an actual significant change of circumstances is not a pre-requisite to allow a s65DAAA application.”

In contrast Justice Schonell in Carlyon & Graham [2024] FedCFamC1F 443 concluded there was no difference between the common law principles and s65DAAA. Justice Aldridge in Sciacchitano & Zhukov [2024] FedCFamC1A 224 relied on the common law principle in Rice and Asplund, commenting that “if s65DAAA did not require a finding that there had been a change of circumstances it would be otiose and the whole section pointless.”

The matter of Radecki & Radecki [2024] FedCFamC1A 246 came before the Full Court of the Federal Circuit and Family Court of Australia seeking clarification of the interpretation of s65DAAA. So important was this clarification of s65DAAA the Court constituted a special full court of three judges to hear the appeal. The Full Court ultimately determined that s65DAAA codified the rule in Rice and Asplund and a finding of changed circumstances was required prior to reconsidering a final parenting order

The Full Court concluded that the interpretation of the word “consider” should not be a literal one as a literal interpretation would lead to an operation of s65DAAA which is absurd, irrational, contrary to parliamentary intention and may result in unintended undesirable consequences. Such a literal interpretation would open the floodgates to unfettered applications to revisit parenting orders, which would be contrary to the best interests of the children and fails to provide parents with any certainty of their final parenting order.

Accordingly, for applications where one parent seeks a reconsideration of a final parenting order, the court must first make a positive finding about changed circumstances pursuant to s65DAAA(1). In the event the court is satisfied that there has been a significant change in circumstances, the court must then be satisfied that it is in the best interests of the child/ren for the final parenting order to be reconsidered. Absent a positive finding of changed circumstances, the final parenting order cannot be reconsidered.

Authors: Madeline Elliott and Katherine Jian

Supporting partner: Fiona Hoad