Has there been a ‘significant change’ to cases involving reconsideration of final parenting orders?

Changes to the Family Law Act 1975 (Cth) (the Act) in May 2024 introduced new rules for how the court will reconsider final parenting orders.

The historic approach

Prior to May 2024, parents, practitioners and the court commonly referred to the principle(s) arising from the case of Rice and Asplund (and subsequent cases) when determining a reconsideration of final parenting orders.

Without traversing years of case law, regard had to be had as to whether:

1. there had been a substantial and significant/sufficient change in circumstances since the making of the final parenting orders, and whether
2. the final parenting orders remained in the child’s best interests (including by considering the undesirability of exposing a child to multiple court proceedings).

Until recently, the question of whether there had been a substantial and significant change in circumstances since the making of the final parenting orders was often determined before the application to reconsider final parenting orders was progressed too far into the court process.

This resulted in threshold hearings for parties and had a greater prospect of enlivening applications for cost orders.

The new law

The changes to the Act introduced section 65DAAA which specifically addresses the reconsideration of final parenting orders. The changes provides that the court must not reconsider final parenting orders unless it:

1. has considered whether there has been a significant change in circumstances since the final parenting orders were made, and
2. is satisfied that, in all circumstances, it is in the child’s best interests for the final parenting orders to be reconsidered.

The Act then identifies the factors for the court to consider when determining whether to reconsider final parenting orders. They include:

1. the best interests of the child,
2. the reasons for the final parenting orders and the material on which they were based,
3. whether there is material available at the time of the reconsideration which was unavailable when the final parenting orders were made,
4. the likelihood of the court making new parenting orders that affect the operation of the final parenting orders in a significant way, and/or
5. any potential benefit, or detriment, to the child that might result from reconsidering the final parenting orders.

Judicial consideration

The changes to the Act were recently considered by the court in Whitehill & Talaska [2024] FedCFamC2F 768 (Whitehill), Farnworth & Farnworth [2024] FedCFamC2F 1094 (Farnworth) and Rasheem & Rasheem [2024] FedCFamC1F (Rasheem).

Each of Whitehill, Farnsworth and Rasheem identify that whilst the introduction of section 65DAAA of the Act ‘…was intended to codify the…rule established in Rice and Asplund…’ section 65DAAA operates in a ‘…substantially different manner to the rule’.¹

The differentiation arises because of the language used in the changes to the Act. As held in Rasheem:

As such, whilst it is therefore mandatory for the court to consider whether there has been a sufficient or significant change in circumstances, such a change of circumstances is not a prerequisite to allow a reconsideration of final parenting orders. The other facts described in section 65DAAA of the Act can inform whether any reconsideration should occur even if a sufficient or significant change in circumstances has not occurred. Moreover, the court must consider the totality of the child’s best interests when hearing an application for reconsideration.

The result therefore is that the court ‘…is now mandated to reconsider final parenting orders even in cases where a significant change of circumstances has not occurred, but it is otherwise in the child’s best interests for a reconsideration to occur’.³

What do the changes mean for parents?

It does not automatically follow that these changes open the floodgates and require the court to reconsider final parenting orders every time an application is made.

The years of case law will still inform the definition of a significant change in circumstances, and the decisions in both Farnworth and Rasheem identify the difficulties and risks of satisfying the court that the reconsideration of final parenting orders is indeed in the child’s best interests.

Whilst the law may have changed, it remains imperative that parents/parties 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. It may also result in adverse cost consequences for the applicant.

Additionally, parents/parties must 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/change.

If you would like to discuss your final parenting orders and how these changes might impact your situation, please get in touch with Family Law Principal Will Stidston today.

Family Law Act 1975 (Cth)
Rice, M.A. and Asplund, C.J. [1978] FamCA 84; (1979) FLC 90-725; (1978) 6 FamLR 570 (22 November 1978)
Whitehill & Talaska [2024] FedCFamC2F 768 (5 July 2024)
Farnworth & Farnworth [2024] FedCFamC2F 1094 (26 July 2024)
Rasheem & Rasheem [2024] FedCFamC1F 595 (6 September 2024)

¹ Rasheem at {52] and [53] per Altobelli J.
² Rasheem at [52] and [53] per Altobelli J.
³ Rasheem at [75] per Altobelli J.