As a result of changes to the Family Law Act 1975 on 6 May 2024, the perception amongst non-lawyers might be that it is now easier than before to change parenting orders. This is because on a literal reading of s65DAAA, the law has been materially altered in relation to whether a significant change in circumstances is a requirement before changing parenting orders.
It is unfortunate that the drafting of this new section when read on its face, does not conform with Parliament’s intention when the Act was amended, and results in undesirable consequences.
The purpose of the amendments to the Act was to codify the rule in Rice & Asplund, delivered in 1979, which required that before the Court would change a parenting order, a party was required to demonstrate that there had been a significant change in circumstances since the order was made.
The reality is that the newly drafted legislation, when read literally (which is the likely consequence for a self-represented person), suggests that a significant change in circumstances is no longer necessary before reconsidering parenting orders.
Multiple cases heard in 2024, at first instance, determined that the new statutory test for whether a parenting order can be changed, operates substantively differently to the rule in Rice & Asplund, making it easier for a parent to seek reconsideration of final parenting orders.
The Appeal Court in Radecki has now confirmed the incorrectness of these first instance decisions and held that:
- A literal interpretation of section 65DAAA is at odds with the purpose of the Act and leads to absurdity;
- The Court is still required to make a finding about changed circumstances, not simply ‘consider’ it;
- The Common law principles of Rice & Asplund are not discernably different to the codified version of the Rule under the Act.
The Court encouraged an interpretation of the legislation that is not literal, and which has regard to the intentions of Parliament when the Act was amended – that is, the codification of the common law principle in Rice & Asplund.
This article explores the current state of the law, with respect to the elements that must be proved in order for you to change final parenting orders.
Requirements in order to change parenting orders
Pursuant to section 65DAAA of the Family Law Act 1975, interpreted non-literally in the Appeal Court Case of Radecki & Radecki, once final orders are made by a Court, the orders are final and cannot be changed unless:
- The court makes a finding that there has been a significant change in circumstances since the final parenting order was made; and
- The Court is satisfied that it is in the best interests of the child for the final parenting order to be reconsidered.
The Court must have regard to section 60CC in determining whether a reconsideration of the final parenting orders is in the child’s best interests. The relevant section 60CC factors are:
- What arrangements promote the safety of the child and each person who has care of the child;
- Any views expressed by the child;
- The developmental, psychological, emotional and cultural needs of the child;
- The capacity of the parents to meet the needs of the child including the child’s developmental,
psychological, emotional and cultural needs; - The benefit of the child having a relationship with the child’s parents and others significant to the
child, where it is safe to do so; - The child’s right to enjoy their aboriginal/Torres Strait islander culture;
- Any history of family violence or family violence orders in place.
The Court may also have regard to any other matters the Court thinks are relevant including but not limited to:
- The reasons for the final parenting order and the material on which it was based;
- Whether there is any material available that was not available to the Court that made the final parenting order;
- The likelihood that if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying/discharging/suspending the final parenting order in whole or in part or in some way);
- Any potential benefit or detriment to the child that might result from reconsidering the final parenting order.
The Court may also reconsider a final parenting order with the consent of all parties to the order.
The process the Court then follows when reconsidering parenting orders is therefore as follows:
- Determine whether there has been a significant change in circumstances since the final orders
were made; - If there has not been a significant change in circumstances, the parenting orders are to remain in
place; - If there has been a significant change in circumstances, the court must then determine whether it
is in the best interests of the child for the orders to be reconsidered; - If it is in the best interests of the child for the orders to be reconsidered, then the Court will make
new parenting orders that are in the best interests of the child.
The literal reading of section 65DAAA leads to an undesirable interpretation of it, which is not in line with the intentions of Parliament.
This may cause significant confusion to self-represented parties when trying to understand what the requirements are when considering the requirements necessary to change a final parenting order.
Accordingly, it is strongly advisable that you obtain legal advice to understand your rights and obligations in the particular circumstances of your case, before filing an application to change parenting orders.
Radecki – The case that made clear that it is not easier to change parenting orders
The parties separated in 2014. There was one child of the relationship, who was 2 years of age when final parenting orders were made in 2015 which provided for increased time between the child and the Father until he was 5 years of age.
The Father asserted that up until September 2022, he spent time with the child in excess of what was prescribed by the 2015 orders.
The arrangements provided for in the 2015 orders were disrupted by the Mother between September 2022 and September 2023 at which time the Mother threatened to call the police if the Father attended the child’s sporting activities. She did not comply with the 2015 orders during that period, on her case, because of regular engagement between the Father and the police arising from intoxication, his history of drug use and criminal activity whilst intoxicated.
In July 2023, the Father brought an application to the court seeking to increase the time that the child spent with him, to 5 nights per fortnight during the school term and half school holidays.
In August 2023, the Mother filed a response seeking to dismiss the Father’s application pursuant to ‘the rule in Rice & Asplund’.
In September 2023, the Mother permitted the Father to resume spending time with the child pursuant to the 2015 orders.
The original hearing, on 24 May 2024, took place by way of submissions on evidence, without cross-examination.
At that time, the Court considered whether the words in section 65DAAA of the Family Law Act 1975 meant something different to the principles set out in the case of Rice & Asplund.
The Court considered the wording of the newly drafted section 65DAAA, in particular the first stage of the rule, and questioned whether the Court is still required to make a finding about changed circumstances or alternatively, merely ‘consider’, whether or not there has been any change.
On 27 June 2024, the primary Judge made orders and judgement dismissing the Father’s application to change the parenting orders.
The primary judge made his decision after ‘considering’ whether or not there had been any change in circumstances, but he determined that on a literal reading of s65DAAA, he was not required to make a finding about changed circumstances (this requirement to make findings of fact about changes in circumstances had been established and approved in various decisions following Rice & Asplund).
On Appeal, the Court held that the primary judge’s approach adopted was in error and the matter was remitted for rehearing.
In upholding the appeal, the Court held that there was no ambiguity in the explanatory memorandum to the legislation, being the intention to codify the common law rule established in Rice & Asplund, and the first stage of application of the rule requires an applicant to establish that there has been a significant change in circumstances since the making of the previous parenting orders, before those orders can be reconsidered. The Court noted that decisions previous to Radecki, including Rasheem, Whitehill & Talaska and Melounis, which adopted a literal interpretation of the wording in s65DAAA, were at odds with and conflicted with the context and purpose of the legislation.
In summary, the Court held:
- The principles set out in Rice & Asplund have been refined over time to mean that there is a two-stage test. Firstly, there has to be a change in circumstances and secondly the change/s have to justify embarking upon a second contested parenting hearing as being in the child’s best interests.
- Having regard to the principles of statutory interpretation, including consideration of the Second Reading Speech that gave rise to the introduction of s65DAAA, and having regard to the principles espoused in Rice & Asplund and subsequent authority, the proper interpretation of ‘consider’ should not be a literal one.
- The word consider in s65DAAA 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 previous 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 in s65DAAA(1)(b) and otherwise having regard to the relevant section 60CC considerations, and the matters referred to in s65DAAA(2).
What does this mean for my application to change parenting orders?
The case of Radecki has made clear to practitioners that s65DAAA is not to be interpreted literally but applied as being a codification of the rule in Rice & Asplund, and the legislation should be interpreted accordingly.
The Court must find that there is a change in circumstances before it can consider whether the best interests of the children require a change to the previous parenting orders.
Whilst it was originally thought that newly drafted legislation made it easier than ever to change parenting orders, the case of Radecki makes clear that this is not the case.
It is important to carefully consider with the benefit of specialist legal advice, whether there has been a significant change in circumstances since your final parenting orders were made, before embarking on an application to court to change those final parenting orders.
An unsuccessful application will not only result in wasted costs, but you may be required to pay the other parent’s legal fees.
There will be financial costs and emotional costs associated with this process that may or may not be worthwhile in your specific circumstances.
It is important also to consider the practical benefit to your child of an application to change parenting orders and weigh up the practical benefit to your child against the financial and emotional costs involved.
Contact us to discuss a request to change parenting orders
Are you of the view that there has been significant changes in circumstances since your final parenting order was made and that it is in your children’s best interests for your parenting orders to be changed? Contact our office and book an initial consultation with one of our experienced family lawyers to discuss your individual circumstances.
