The recently passed Family Law Amendment Act 2023 introduces a new section, 65DAAA, codifying the principle established in Rice v Asplund (1979) FLC 90-725.
This rule stipulates that when final parenting orders are in place, the applicant must demonstrate a significant change in circumstances since those orders were made before they can be reconsidered.
The underlying rationale is that prolonged legal disputes over a child’s custody generally do not serve the child’s best interests.
Section 65DAAA now incorporates this principle into the Family Law Act 1975, stating that the Court cannot revisit a parenting order unless there’s proof of a significant change in circumstances and, crucially, it’s in the best interests of the child for the order to be reconsidered. This second condition supplements the existing Rice v Asplund test.
In evaluating the child’s best interests, the Court can consider various factors, including:
- Reasons behind the initial parenting order and the evidence available at that time.
- New evidence that wasn’t accessible when the final parenting order was made.
- Whether, upon reconsideration, the Court would issue significantly different terms in an order.
- The potential advantages or disadvantages to the child if the final parenting order is reconsidered.
Even if a significant change in circumstances is proven, if the Court determines that varying the final parenting order isn’t in the child’s best interests, the order won’t be changed. This may heighten the difficulty of initiating new parenting proceedings compared to the previous criteria.
However, the amendments confirm that parents can still mutually agree to amend a final parenting order.
Parties are still obligated to adhere to pre-action procedures before initiating proceedings to modify a final parenting order.
Considering the added stipulations in section 65DAAA, persuading the Court to entertain a request to reconsider final parenting orders might become more challenging. Anticipated increased litigation will likely test the application of this new section.
For assistance with parenting matters or guidance concerning final parenting orders, please reach out to our experienced family & relationship law team.
Remember, the information provided here is general in nature and should not replace specific legal advice. No responsibility is accepted for any losses incurred due to actions taken or refrained from based on the material published.