Family Law Amendment Act 2023: Requirements for reconsidering final parenting orders

The Family Law Amendment Act passed on 19 October 2023 and includes a new section 65DAAA, which codifies the rule in Rice v Asplund (1979) FLC 90-725. The rule provides that where there are final parenting orders in place, the applicant must establish that there has been a significant change of circumstances since the making of the orders before those orders can be reconsidered. The rule is founded on the notion that continuous litigation over a child or children is generally not in their best interests.

Section 65DAAA now makes this part of the Family Law Act 1975, providing that the Court cannot reconsider a parenting order unless that significant change of circumstances has been established and further, that it is in the best interests of the child for the order to be reconsidered. This adds a second limb to the current test in Rice v Asplund.

In considering the best interests of the child or children, the Court can have regard to any matter it considers relevant. This can include:

• why the final parenting order was made and the evidence available to the Court at the time it was made;
• any new evidence available that was not available at the time the final parenting order was made;
• whether, if the final parenting order is reconsidered, the Court would make an order in significantly different terms;
• the potential benefit or detriment to the child of the final parenting order being reconsidered.

If the Court finds it is not in the best interests of the child or children to vary the final parenting order, the order will not be varied ─ even if a significant change in circumstances is established. This may make it more difficult to bring fresh parenting proceedings than under the previous test.

The amendments provide that parents are still able to agree between themselves to vary a final parenting order.

Parties are still required to comply with pre-action procedures before commencing proceedings to vary a final parenting order.

Given the additional requirements under section 65DAAA, (also known as s65DAAA), it may be more difficult to persuade the Court to entertain an application to reconsider final parenting orders. We anticipate increased litigation as this new section is put to the test.

If you would like assistance with your parenting matter or are seeking guidance in regards to final parenting orders, please contact a member of our experienced family & relationship law team.