How to change parenting orders

As a result of changes to the Family Law Act 1975 on 6 May 2024, it is now easier than before to change parenting orders.

The traditional approach for the requirements of changing a parenting order, was originally set out in the cornerstone case of 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.

This article explores the new law with respect to the requirements that must be proved in order for you to change parenting orders.

The Family Law Amendment Act 2023 codified Rice & Asplund within the Family Law Act 1975. However, whilst codification may have been the goal of Parliament, the new statutory test operates substantively differently to the rule in Rice & Asplund, making it easier for a parent to seek reconsideration of final parenting orders.

The requirements that must be satisfied for a reconsideration of parenting orders are set out in section 65DAAA which states that the Court must not reconsider a final parenting order unless:

The court has considered whether there has been a significant change of circumstances since the final parenting order was made;
The Court is satisfied that in all the circumstances, 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.

In considering whether to reconsider a final parenting order, the Court may have regard to (s65DAAA(2(a) – (d)):

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.

Now that the requirements have been codified and it is clear what needs to be demonstrated to change parenting orders in the legislation, it should be easier for parties to understand what the Court considers. Having said this, legal advice is always advisable to understand your rights and obligations in the particular circumstances of your case.

Cases considering the new law regarding how to change parenting orders

There have been two first instance cases since changes to the legislation, that consider the new statutory test espoused by section 65DAAA, regarding the requirements you must satisfy to change parenting orders.

These cases are Whitehill & Talaska [2024] FedCFamC2F 768 delivered by Judge O’Shannessy on 5 July 2024, and Rasheem & Rasheem [2024] FedCFamC1F 595 delivered by the Honourable Justice Altobelli on 6 September 2024.

What both of these cases make clear is that is that the new statutory test in s65DAAA of the Family Law Act 1975 operates in a substantively different way to the previous common law rule in Rice & Asplund.

Justice Altobelli agreed with (and extended upon) Judge O’Shannessy’s reasoning and found 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.

Rasheem & Rasheem

In Rasheem & Rasheem, the mother sought to reconsider final parenting orders made on 18 August 2023 after a 7 day hearing.

This was opposed by the Father.

The case concerned two children X and Y, who were 6 and 4 years of age.

The application to reconsider final parenting orders brought by the mother, was heard on 15 July 2024, not quite a year after the final parenting orders had been made.

The court was also required to consider the incidental matter of whether the Mother should be restrained from causing the children to receive therapy from their current treating psychologist Ms RR.

Importantly, both parties acknowledged that the Court could order expert evidence on the discrete issue of whether re-litigation would benefit the children, noting the disruptive effect further court proceedings was likely to have on the children. The ICL and the Mother supported the production of expert material but this was opposed by the Father, who said it was proper to evaluate the need for further expert material following a consideration of the threshold issue under section 65DAAA.

The Court put to the parents the benefit of an expert report, in that such evidence would assist the parents in resolving their current and future issues, if the court did allow the Mother’s application to reopen the parenting orders.

Ultimately the Court dismissed the Mother’s application to reconsider the final parenting orders, and dismissed the need for further expert evidence an ordered that the Mother be restrained from causing the children to receive therapy from their psychologist and that she must comply with the existing final parenting orders.

Here is the background as to why the court made this decision.

The final parenting orders made on 18 August 2023, provided for the Mother to have sole responsibility for the children, for the children to live with the Mother and to spend graduated time with the father, initially supervised day visits (1st stage), then unsupervised daytime visits (2nd stage), then overnight time (third stage) and ultimately each alternate weekend (4th stage). The orders also provided for both parties to have time with the children on special occasions. Both parents were permitted to travel overseas with the children on conditions. The Father was required to submit to hair follicle testing and provide a letter from his treating doctor in relation to this.

The third stage which involved the introduction of overnight time such that the children would spend time with the Father each Wednesday from after school/day care to 6pm and each alternate weekend from 9am Saturday to 5pm Sunday. The children were scheduled to begin this stage of time when the Mother unilaterally suspended time with the Father, and subsequently the Mother filed an application that it was not in the children’s best interests to allow overnight time to occur.

The findings in the original judgement or Rasheem which were still relevant were the Mother’s anxiety and its affect on the children, the Father’s evasiveness in respect to his gambling and illicit drug use. The expert report writer also identified that he had personality traits best identified as narcissistic personality traits. The Court stated that if the Father submitted to hair follicle testing and completed a gambling treatment program, then it did not believe the children were at risk of harm arising out of family violence. The parents were otherwise mistrusting of one another and embroiled in constant conflict which posed a significant risk to the children’s wellbeing.

Since the final orders the following events occurred/were alleged to have occurred, by the Mother:

The Mother contended the children had an adverse reaction to time with the Father, deposing to comments by the children for example that they were fearful of their father and that the Father would flee the country with the children and that the police had in late 2023 arrested the Father during the children’s time. All allegations were denied by the Father and said time with the children since the orders was loving, joyful and harmonious;
The Mother contended her financial circumstances had deteriorated whereas the Father was doing well financially. The Father admitted he had not complied with the property components of the final orders. It was unclear from court’s perspective the relevance of this to the Mother’s application to reconsider the final parenting orders.
The parties were in conflict in implementing the final orders and the interparental and interfamilial conflicts between the families have persisted.
The Mother continues to contend issues with the Father’s mental state and parental capacity.
On 2 May 2024, the Mother received a letter from the children’s treating psychologist containing warnings and recommendations based on the children’s alleged reaction to overnight time with the father and strongly advised the mother not to allow the children’s upcoming overnight visit with the Father to go ahead.

The incident on 2 May 2024 was the reason for the Mother’s suspension of time (missing 14 visits including 3 overnight stays), her contact with NSW Police about safety concerns regarding the Father’s unilateral reaction to the suspension of time, and the catalyst for the Mother’s application.

The Father contends that the anxiety of the mother and her witnesses is the primary reason for the unilateral suspension of his time with the children, rather than any change in circumstances or deficit in his parenting capacity.

The Mother’s application sought to vacate various final orders, with the Father to spend time with the children solely as determined by the Mother, under professional supervision and for the Father to be restrained from attending the children’s school, the Mother’s residence and extra-curricular activities. The ICL supported the Mother’s application but proposed to suspend rather than to vacate those orders. The Father sought enforcement of the final orders.

The main crux of the Mother’s application to change the final parenting orders was her allegation of an escalation of the interparental and intrafamilial conflict, an escalation of anger by the Father and his family, and the distress/anxiety the children were exhibiting before and after visits with the Father.

In making a decision, Justice Altobelli considered various extrinsic material, such as the Acts Interpretation Act 1901 and the Explanatory Memorandum to the Amendment Act, given the lack of case law interpreting s65DAA since the amendments were made.

The extrinsic material pointed to a strong intention to codify the existing law founded in Rice & Asplund.

In relation to the interpretation of the new section 65DAAA, Justice Altobelli pointed out:

Rice & Asplund mandated a finding of a significant change in circumstances whereas s65DAAA merely requires that a court must not reconsider a final parenting order unless it has considered whether there has been a significant change in circumstances since the final parenting order was made.
Consider under the AIA, means to contemplate mentally, fix the mind upon, think over, meditate or reflect on. Whether something has been considered will be answered by the objective manifestations of the judgement.
Given the only requirement is for the Court to consider whether a significant change in circumstances has occurred, the weight afforded to such change in circumstances is varied having regard to the facts of the matter.
Therefore, section 65DAAA does not require a change in circumstances, rather, where there is or is not a change in circumstances must merely be considered.
The fundamental criteria that must be satisfied to reconsider a final parenting order, is simply that in all the circumstances it is in the children’s best interests for the order to be reconsidered: s65DAAA(1)(b).

In summary, His Honour affirmed the proposition by Judge O’Shannessy that whilst it is mandatory to consider whether there has been a significant change in circumstances, this is not a prerequisite to allow a reconsideration of final parenting orders. Other factors in section 65DAAA can inform the Court’s decision, for example the reason the orders were made, the material upon which the decision was based and whether there is material before the court that was not available at the time the final order was made.

Putting aside the above, His Honour made clear that the case law was not irrelevant and still held continuing value, particularly with respect to the interpretation of a ‘significant change in circumstances.’

Justice Altobelli held as follows in relation to the psychologist’s letter:

The letter from the psychologist recommended against overnight time, not the suspension of all time;
There was no evidence before the Court that corroborated that the NSW Police or Child Safety supported a suspension of time, in contradiction to the psychologist recommendation;
The above is concerning given the Mother solicited the psychologist letter and then unilaterally suspended time;
The psychologist was not informed about the anxiety experienced by the Mother, and it was her responsibility to make disclosure of this.
the psychologist relied principally on the Mother’s reports and observations of the children not extrinsic material, and the psychologist did not consult with the Father.
The Mother was present or proximate during all observations between the children and the psychologist.
There was no attempt by the psychologist to reality test or contextualise what the children were saying. If it was her assessment that she should remain objective, then she should have avoided making recommendations.
The psychologist was therefore acting in the darkness, which was a poor space from which to make recommendations.
He was concerned about the accuracy of the psychologist’s records in that they may have been written up after April 2024, when she was aware the matter may go back to Court.
He was concerned about the information in the notes being misleading and based upon information probably given by the mother.
He therefore placed minimal weight on the psychologist’s letter, as the recommendation that the children not have overnight time was based on a flawed methodology, and the Mother willingly embraced the recommendations noting she had been complicit in its methodological flaws.

His Honour held the Court found that no significant change in circumstances had occurred.

His Honour held in relation to the requirements under s65DAAA(2):

The reasons for judgement for the original hearing only bolsters the Father’s case as it directs attention to the Mother’s anxiety and its risk to the children;
The new material available in relation to the level of conflict between the parties and each party’s family was not so different from that which was before the court at the time of the substantive hearing. None of the new material available supported a finding that it was in the children’s best interests for final parenting orders to be reconsidered.
The final orders already achieved the outcome of ameliorating any risk the father posed to the children. Given the psychologist’s letter was given little weight, the lack of evidence before the Court that the children’s reports were more than allegations, the children were in any event not at an age where weight would have been placed in their wishes, it was highly unlikely the court would change the operation of the final orders to prioritise the ‘children’s safety and mental health’ as the final orders already achieve this.
In all the circumstances above, there was no benefit to be derived from a change to the final orders. The children have a positive relationship with their father, and it would be to the children’s disadvantage if time was taken from the children with their father.

Contact us to discuss a request to change parenting orders

Are you of the view that there have been changes of circumstances since your final parenting order was made? Or are there other reasons why you think it is in the 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.

How to change parenting orders – it’s now easier than ever before