Revisiting Final Parenting Orders in the New Legislative Landscape

Significant changes to the parenting provisions of the Family Law Act 1975 (Cth) (Act) were introduced by the Family Law Amendment Act 2023 (Cth) (Amendment Act).  These changes took effect from 6 May 2024.

Until the recent amendments, it was well-established by case law that once final parenting orders had been made, the court would not entertain an application by a party to revisit those orders unless there had been a change in circumstances sufficient to warrant reopening the litigation. This is known as the Rice v Asplund principle, which takes its name from the 1979 Family Court of Australia (as it then was) decision where the principle was established. The public policy rationale was to avoid the adverse consequences to children and their parents of becoming embroiled in continuing litigation.

While the explanatory memorandum to the Amendment Act and other extrinsic material suggest that Parliament intended to codify the Rice v Asplund principle, two significant cases determined subsequent to the introduction of the recent amendments suggest that the new statutory test contained in section 65DAAA of the Act operates in a substantively different manner to the rule in Rice v Asplund.

This article examines those decisions and considers the way in which the court is likely to approach applications to revisit final parenting orders in the new legislative landscape.

Section 65DAAA Reconsideration of final parenting orders

Section 65DAA(1) of the Act provides as follows:

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.

(underlining is our emphasis)

Section 65DAA(2) of the Act contains a non-exhaustive list of matters which the court may take into account in its consideration of best interests.

Whitehill & Talaska [1]

This was a decision of Judge O’Shannessy (Division 2) delivered in July 2024. The case involved an application by the subject child’s mother to revisit final parenting orders entered into by consent in April 2023. The child was one year old at the time the final orders were made and three years old when the matter came before Judge O’Shannessy. The mother sought to have the court revisit the final orders in circumstances where she alleged there had been a significant deterioration in the father’s mental health following the making of the orders.

In examining the new statutory provision and contrasting it with the rule in Rice v Asplund, Judge O’Shannessy observed at [12] that, “… on its face, section 65DAAA does not require a change of circumstances or provide that there must be a prima facie change of circumstances, rather, whether there is or is not a change of circumstances must be “considered” and all of the circumstances must be taken into account including section 60CC and whether there has been a change of circumstances. This is, on the face of the new section, a difference of substance not merely of emphasis when compared to the orthodox recitation of the rule.”

While Judge O’Shannessy considered the explanatory memorandum to the Amendment Act and other extrinsic material, and concluded that the new provision did not reflect what Parliament appears to have been intended, His Honour was nonetheless bound to follow the clear text of the new provision. At [17], Judge O’Shannessy held that, “Whether or not significant change or a prima facie significant change was always a fundamental requirement, or a “must” for reconsideration of final orders, it is clear enough that it is not an absolute requirement for the “reconsideration” of final orders under section 65DAAA. Rather, the absolute requirement continues to be the best interests of the child/ren.”

Judge O’Shannessy was not satisfied that in all the circumstances it was in the best interests of the subject child for the final orders to be reconsidered. Pending a further hearing before His Honour, the mother was ordered to comply with the existing final parenting orders.

Rasheem & Rasheem [2]

This was a decision of Judge Altobelli (Division 1) delivered in September 2024. The case involved an application by the subject children’s mother to revisit final parenting orders made in August 2023 following a seven day contested hearing. The children were aged 6 and 4 respectively when the matter came before Judge Altobelli.

The mother had unilaterally ceased the children’s time with their father pursuant to the final orders following an altercation between the father and a member of the mother’s family at changeover, as a consequence of the children’s alleged distress at the prospect of spending time with the father, and upon the written recommendation of the children’s psychologist.

Judge Altobelli endorsed Judge O’Shannessy’s analysis of the extrinsic material and interpretation of the relevant statutory provision in Whitehill & Talaska.

Judge Altobelli agreed with Judge O’Shannessy that although the court is required to consider whether there has been a significant change of circumstances since the final parenting orders were made, such a change is not necessary to enable the court to reconsider the orders.

Judge Altobelli identified a further departure from the common law rule in Rice v Asplund. Prior to the recent amendments, judges were not required to consider best interests factors when dismissing Rice v Asplund applications as a threshold issue, as the dismissal itself was not considered to be a parenting order. However, it is an express requirement of section 65DAAA(1) for the court to be satisfied that in all the circumstances it is in the best interests of the child for the final parenting order to be reconsidered. At [70], Judge Altobelli suggested this additional step introduced by the recent amendments was unfortunate in that is likely to increase the amount of potentially unnecessary litigation children are exposed to.

Judge Altobelli was not persuaded that it was in the subject children’s best interests for the final parenting orders to be reconsidered. His Honour ordered the mother to comply with the existing final orders. In arriving at this decision, Judge Altobelli placed little weight on the recommendations of the treating psychologist in circumstances where those recommendations were based on information provided solely by the mother, and were made without having properly tested the veracity of the mother’s allegations or seeking to involve the father or hear his perspective.

Practical insights

While it will often be the case that a finding of a significant change in circumstances will support intervention by the court, it is no longer necessary for there to be such a change. The inverse finding that there has been no relevant change in circumstances would not of itself preclude the court from reconsidering final parenting orders if the best interests of the child or children justify the change.

Some commentators have suggested that the new statutory provisions represent a lower threshold for final parenting orders to be  successfully challenged. In theory, this may well be the case. It will be interesting to see how these cases unfold in practice.

If you require advice and assistance in relation to parenting matters, including making or opposing an application to challenge existing final parenting orders, please do not hesitate to contact one of our experienced family lawyers.