Whilst it is sometimes necessary for the Court to determine a dispute between parents about their child, there is extensive literature on the harmful effects on a child of ongoing Court proceedings.
Once a court makes final parenting orders – whether by consent or following a defended hearing – it is very difficult to change those orders. This is on the basis of policy considerations, including that children should not be exposed to ongoing litigation and uncertainty regarding their care arrangements.
Prior to amendments brought into effect in 2024, parents seeking to vary final parenting orders were required to rely on a case known as Rice v Asplund (1979) FLC 90-725. In Rice v Asplund, the Court emphasised that final parenting orders are intended to provide stability and should not be reopened lightly. The Court further held that prior to reconsidering final parenting orders, there must be evidence of a ‘significant change in circumstances’. In particular, Chief Justice Evatt said “The court should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation…”
In 2024, amendments to the Family Law Act 1975 (Cth) legislated the principle in Rice v Asplund in section 65DAAA of the Act. Section 65DAAA of the Act states:
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.
In determining whether it is in the best interests of the child for the final parenting order to be reconsidered, the Court may have regard to a number of factors set out in section 65DAAA(2) and the matters set out in section 60CC of the Act (the provision which sets out how a Court determines what is in a child’s best interests).
The Full Court decision of Radecki & Radecki [2024] FedCFamC1A 246 has become the authority on how section 65DAAA should be applied. In Radecki, the Court determined that it was Parliament’s intention to codify the rule in Rice v Asplund, that there was no ‘lowering’ of the threshold test and that the Court must make a positive finding that there has been a change of circumstances. It is not sufficient for the Court to simply consider whether there had been a change of circumstances and proceed with a variation of orders without such a change.
If you are seeking to vary final parenting orders, it is important that you consider whether there has been a significant change of circumstances. Even if you are considering making a temporary change to the final parenting orders – for example, should a parent be unable to care for the child and no agreement can be reached – the Court will require evidence of a significant change of circumstances prior to making any determination about a variation of the final orders.
Whilst it is not impossible to vary final parenting orders, there is a threshold that you must meet prior to invoking the Court’s jurisdiction to vary final orders. This area of law is technical and requires nuanced and careful consideration, and specialist advice.
If you are seeking to vary final parenting orders, you should seek advice from a specialist family lawyer about whether your proposed application meets the s65DAAA threshold. Contact R+M LAW today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced family lawyers.