How "final" are final parenting orders?

Parents who go through the process of formalising parenting arrangements after separation in the form of final parenting orders may naturally be concerned that those orders are, as the title suggests, final.

Recognising that the needs and circumstances of children, parents and families can and often do change, the term "final parenting orders" is a misnomer. Final parenting orders are capable of variation and amendment if the circumstances require it. However, in order to ensure that children (and their parents) are not subject to endless rounds of litigation pending adulthood, it has long been held that before a parent can seek to set aside or vary final parenting orders, they first need to establish that there has been a sufficient change in circumstances to warrant revisiting the orders. This article explores the longstanding position of the court and the recent legislative changes that affect the way the court addresses these cases.

The Rice v Asplund test

This substantial change of circumstances test is known as the Rice v Asplund principle, and takes its name from the 1979 Family Court case which first established it. Significant legislative amendments to the Family Law Act were introduced on 6 May 2024 which were initially understood to be a codification of the Rice v Asplund principle, legislating for the first time the requirement for potential litigants to prove the necessary substantial change of circumstances before attempting to reopen final parenting orders.

Recent legislative amendments

The 6 May 2024 amendments introduced a new section 65DAAA into the Family Law Act. Under the heading Reconsideration of Final Parenting Orders, the section provides that:

(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:

• the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
• 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.

(emphasis added).

Following the introduction of this section, two notable cases of the Federal Circuit and Family Court of Australia have considered the nature and meaning of the section, and whether it does truly represent a codification of the Rice v Asplund principle.

Whitehill & Talaska¹

This case involved an application by a mother to vary final parenting orders that had been made a year prior. Judge O'Shannessy noted that "Final Orders are meant to be final...Although always considered through the prism of the best interests of the children, the frequently accepted or orthodox recitation of the rule in Rice & Asplund, required that there must be a prima facie change of circumstances sufficient to justify embarking upon a further inquiry as to what parenting orders were in the best interests of the children with all the trouble, grief and strife for all involved that often entailed."

In considering section 65DAAA, Judge O'Shannessy noted that its wording does not however require that a court must find there has been a sufficient change of circumstances. Rather, the court is only required to consider whether there has been a change of circumstances. In so considering, the court may find that there has been a change, or that there has not. Importantly, a finding that there has been no change would not preclude a court from varying final parenting orders if the best interests of the child require it.

Rasheem & Rasheem

In the subsequent case of Rasheem & Rasheem² Judge Altobelli noted that section 65DAAA operates in a substantively different manner to the Rice v Asplund test in that "the Court only needs to consider whether a significant change in circumstances has occurred. This is clearly a deviation from the rule in Rice and Asplund that mandated a finding of significant change in circumstances…For the purposes of s65DAAA the Court must simply consider whether circumstances have significantly changed since the final parenting orders were made. The weight afforded to such change is varied, and necessarily based on the facts of the matter. The fundamental criteria that must be satisfied to allow a reconsideration of a final parenting order is that “the Court is satisfied that, in all the circumstances...it is in the best interests of the child for the final parenting order to be reconsidered”.

Key takeaways

In summary, while the court is still required to examine if there has been a sufficient change in circumstances, a positive finding is not a prerequisite to a consideration of whether final parenting orders ought to be varied. The only prerequisite is that it is in the children's best interests that the orders be revisited.

Although the new section 65DAAA appears materially different to the previous common law position, in the absence of any real change post the date of final parenting orders, it will still be difficult to establish that the best interests of children necessitate further litigation. It remains to be seen whether the 6 May 2024 amendments lead to further litigation in respect of parenting matters, and particularly the reopening of final parenting orders.

¹ [2024] Fed CFam C2F 768

² [2024] Fed CFam C1F 595