Clarification of the approach to cases involving reconsideration of final parenting orders

date
13 January 2025

On 19 December 2024, the Full Court of the Federal Circuit and Family Court of Australia (Division 1) delivered its judgment in Radecki & Radecki FedCFamC1A 246. This landmark decision provided the Full Court with an opportunity to offer crucial guidance on the interpretation and application of the amendments to the Family Law Act 1975 (Cth) concerning the reconsideration of final parenting orders.

In October 2024, I wrote about the codification of requirements for the reconsideration of final parenting orders which were introduced into the Family Law Act 1975 (Cth) ('the Act') in May 2024: Has there been a ‘significant change’ to cases involving reconsideration of final parenting orders? That article considered the outcome of first instance decisions in Whitehill & Talaska [2024] FedCFamC2F 768, Farnworth & Farnworth [2024] FedCFamC2F 1094, and Rasheem & Rasheem [2024] FedCFamC1F.

The facts

In Radecki, the parents had one child together, born in 2013. Final parenting orders were made in December 2015, when the child was two years of age. Those December Orders were made following a short undefended hearing before the judge, where the father did not appear.

At the time the December Orders were made, the judge was informed the relationship between the parties was 'quite good given the circumstances'. When the judge raised the future arrangements for the child upon commencement of school, she was informed that the parties would likely work it out because they had 'a very good relationship'. However, this cordial relationship broke down in about September 2022.

On 26 July 2023, the father commenced court proceedings seeking an increase in his time with the child. Subsequently, on 30 August 2023, the mother sought that the father’s court application be dismissed pursuant to 'the rule in Rice and Asplund'.

The first instance hearing took place on 24 May 2024, by way of submissions on evidence which was unchallenged by cross-examination.

On 27 June 2024, the primary judge made an order dismissing the father’s court application and delivered reasons. The father then appealed to the Full Court.

The appeal

Following detailed reasons, the Full Court found appealable error in the approach adopted by the primary judge. The Full Court consequently remitted the matter for rehearing with costs certificates being granted to each of the parties.

The decision in Radecki, however, provides considerable guidance for parties and practitioners regarding the operation of the amendments to the Act which relate to a reconsideration of final parenting orders (i.e., s 65DAAA of the Act).

Specifically, the Full Court detailed what may be described as the history of the rule in Rice & Asplund and subsequent cases, including those considering the amended legislation. Importantly, it then held that:

[73] There is no ambiguity to be found in the Explanatory Memorandum, which specifically refers to both the intention to codify the common law rule established by Rice & Asplund and the first stage of application of the rule, requiring an applicant to establish that there has been a significant change in circumstances since the making of anterior parenting orders, before those orders can be reconsidered. A literal interpretation of the wording of s 65DAAA, as adopted in Rasheem, Whitehill & Talaska, and Melounis, is at odds with and conflicts with the context and purpose of the statute, as stated in the Explanatory Memorandum.

[79] We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of "consider” should not be a literal one. The word “consider” in s 65DAAA should be construed to mean the court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).

Radecki has therefore reiterated that section 65DAAA of the Act is to be interpreted and applied as being a codification of the rule in Rice & Asplund. The court must find that there is a change in circumstances before it can consider whether the best interests of the child(ren) in question require variation to any previous final parenting orders.

As held by the Full Court:

[34] The appeal did not raise any controversy about differences between the application of the second stage of the rule in Rice and Asplund, and s 65DAAA(1)(c) or (2), nor challenge the principle that the rule can be applied at any stage of the proceedings (see Baisman & Cartmill [2022] FedCFamC1A 36 at [11] per Tree J). In exercising its discretion, the court is still required to be satisfied it is in the best interests of the child for the final parenting orders to be reconsidered.

Practical application

The differing approaches to a reconsideration of final parenting orders that have been adopted by the court following the amendment to legislation have identified the need to obtain specialist advice. It remains imperative that a parent carefully consider the merits of their case before applying for the court to reconsider final parenting orders.

An unmeritorious application may result in an undue waste of resources, and potentially adverse costs consequences for the applicant.

Once again, a parent must also carefully consider the practical benefit to the child of any successful application (assuming it is contested). The dedication of resources, and damage to relationships, may outweigh any such practical benefit or change.


Family Law Act 1975 (Cth)
Whitehill & Talaska [2024] FedCFamC2F 768 (5 July 2024)
Farnworth & Farnworth
[2024] FedCFamC2F 1094 (26 July 2024)

Rasheem & Rasheem
[2024] FedCFamC1F 595 (6 September 2024)

Radecki & Radecki [2024]
FedCFamC1A 246 (19 December 2024)

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