Final parenting orders are meant to provide long-term certainty for children and parents, usually lasting until a child turns 18. However, circumstances can change in ways that undermine the original orders. In recognition of this, the Federal Circuit and Family Court of Australia (FCFCOA) (and those courts exercising jurisdiction under the Family Law Act) allows reconsideration of final parenting orders in certain cases.

Historically, courts followed the rule from Rice & Asplund [1978] FamCA 84, which required a “material change in circumstances” before revisiting final parenting orders. This was commonly referred to as the rule in Rice & Asplund and was normally considered by the courts to be a threshold issue in any application seeking to vary or discharge and change existing final parenting orders. The reason for this rule was to prevent endless litigation and preserve stability for the child. However, the rule in Rice & Asplund was codified in section 65DAAA of the Family Law Act 1975 (Cth) (Act), which came into effect on 6 May 2024.

Thus, section 65DAAA explicitly governs when a court may entertain changes to a final parenting order, imposing a stringent threshold test. Below is an outline of the legislative framework, cases and legal principles applicable to an application by a parent to revisit existing parenting orders to seek an increase in time.

LEGISLATIVE FRAMEWORK

Reconsideration of Final Parenting Orders

Section 65DAAA provides as follows:

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

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

(b)  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.

(2)  For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:

(a)  the reasons for the final parenting order and the material on which it was based;

(b)  whether there is any material available that was not available to the court that made the final parenting order;

(c)  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 or suspending the final parenting order, in whole or in part, or in some other way);

(d)  any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

(3)  Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.

(4)  The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.”

RELEVANT CASES

Rice & Asplund

In the seminal case of Rice & Asplund (decided long before section 65DAAA but now codified by it), the Full Court of the Family Court of Australia held that a parent seeking to change existing final custody orders must show a material change in circumstances since the last order. In Rice & Asplund, a mother who had earlier agreed to give the father primary care later sought to regain custody, arguing the situation had changed. The court refused to reopen the case because there was no sufficiently new circumstance; it reasoned that endless litigation over children is generally contrary to their welfare. At Evatt C.J. stated:

“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.”

The Rice & Asplund rule established that final orders should be treated as truly final unless something new warrants a rehearing in the child’s interest. This became the leading authority on the issue.

Sameer & Gamil

Sameer & Gamil [2024] FedCFamC1F 54 is a decision of Brasch J decided in February 2024, some three months prior to the commencement of section 65DAAA) where the parties entered into final consent orders for the mother to relocate to Country B with the three children on giving 90 days’ notice. However, when such notice was given, father held over one child and the mother relocated with the other two children. The question arose whether Australia remained the habitual residence of the two children in Country B. The court also considered whether section 111CD (1) (e) of the Act was engaged and whether the father could be heard per section 69F despite failing to comply with orders. The court concluded that there was no jurisdiction with respect to the two children now residing overseas. However, on the rule in Rice & Asplund, while the court took into consideration the respective conduct of the parties in bringing about the present situation, the court considered the separation of siblings as a significant change in circumstances, warranting the reopening of proceedings for the child who remained in Australia.

At [76] their Honour concluded as follows:

“I consider that the current separation of siblings is a material change of circumstance that warrants re-opening the proceedings, in so far as X is concerned. Whilst it can well be said both parties had a hand in the separation of siblings (the father failing to seek variations to the final consent orders, and, the mother not seeking a recovery order prior to her departure), the reality for these children is that they are now separated. I consider that is not only a material change in circumstances, but one of such quality that it requires consideration within a best interests’ framework and therefore justifies a further parenting hearing with respect to X.”

Dansey & Dansey (No 6) [2024]

In Dansey & Dansey FedCFamC1F 165, decided in March 2024 just prior to the commencement of section 65DAAA, final orders had been made in December 2023. In that case Altobelli J.

The final orders provided for the children to live with the father and spend time with the mother each alternate weekend from after school on Friday until the commencement of school on Wednesday. The spend time arrangements were to graduate to a week about arrangement in 2026.

Those final orders had been made by his Honour after his Honour made several relevant findings in relation to the parties to these proceedings. His Honour’s final reasons for judgment noted that it was an undisputed fact that child X does not hold, and has never held, a belief that she has been sexually abused by the father. His Honour further noted that throughout the history of these proceedings, the mother made allegations in respect of sexual abuse and/or grooming of X but withdrew those allegations upon “reflection”.

At [27] and [28] his Honour made the following observations regarding developments since the final orders had been made:

“27. There are some undisputed and uncontentious facts that can be stated at the outset. The period of no contact with the mother following the final orders was a relatively stable and uneventful period. The children’s relationship with the father, and paternal family, was not perfect but it was not bad. X seems to have happily settled into a new school and is doing well.

28. In contrast to this, after spending the first period of five days with the mother, X refused to return to the father’s home, involved the police, the DCJ and medical professionals whilst making (for the first time, it should be noted) increasingly serious allegations about the father in relation to sexual abuse.”

It was in light of the above that the father sought to suspend the mother’s time. The mother argued that there had not been a significant change in circumstances warranting the final orders being revisited. It was in the context of determining this interim hearing that his Honour concluded at [77] and [78] that:

“77. Whether or not X truly believes she is being sexually abused, it is a significant change in circumstance that she is making allegations of sexual abuse to authorities. Further, it should be noted that the mother herself proposes changes to the final orders although she submitted that she considers those to be ‘minor tweaks’ to the final orders to attempt to ‘’make the children settle in better’.

His Honour suspended the mother’s time for a fixed period to enable the father to file a fresh application for parenting orders.

Katica & Katica

Katica & Katica [2024] FedCFamC1F 137 is another recent decision of the FCFCOA also decided in March 2024. In this case Howard J considered an application by the mother for sole parental responsibility and to reduce the time that the children spend with the father from five nights per fortnight to three nights per fortnight. The father’s competing application was for an order for equal shared parental responsibility and that he have sole parental responsibility in respect of certain issues. This case involved a long history of conflict between the parents. The court accepted that there were significant difficulties in relation to the communication between the parents and that, in the circumstances of this case, it was in the best interests of the children for the mother to have sole parental responsibility and for the children to live with the mother and spend three nights per fortnight with the father.

At [5] their Honour dealt with the Rice & Asplund issue as follows:

“Proceedings were previously commenced in this matter in November 2014 by the mother. A Family Report was completed by Ms G in February 2015 and a final order was made by consent on 6 July 2015 – which saw the parties have equal shared parental responsibility, the children live with the mother and, from January 2016, spend time with the father five nights per fortnight from Friday afternoon until Monday morning (in Week 1) and from Wednesday afternoon to Friday morning (in Week 2). The Rice v Asplund issue can be readily dealt with. Many years have past since the making of the earlier orders. The children are much older. Both parents seek a variation to the earlier final parenting Orders. Circumstances have changed sufficiently and it is appropriate to deal with the matter afresh.”

Katar & Sevan 

Katar & Sevan [2024] FedCFamC1A 49 is a recent decision of Campton J exercising the FCFCOA appellate jurisdiction decided in April 2024 also just prior to the commencement of section 65DAAA. In this case, the father made an oral application for leave to appeal from an order dismissing his application to vary prior consent parenting orders pursuant to the principles in Rice and Asplund. His Honour gave consideration to the principles in Rice and Asplund in circumstances where the father had consented to the prior order that provided for the children to relocate with the mother at a specified time in the future. The father asserted that there has been a significant change in circumstances by way of the agreed passage of time since the order and the withdrawal of his support of the prior order. However, his Honour was not persuaded that the father had demonstrated that the order subject of appeal was attended by sufficient doubt to warrant leave to appeal. His Honour noted that despite finding that there was no sufficient change in circumstance to warrant a revisitation of the prior parenting orders, the primary judge made orders as to an aspect of parental responsibility. Both parties to the appeal agreed that such orders should not be disturbed, irrespective of the outcome of the appeal. Campton J refused leave to father, and the appeal was dismissed. Orders were made for the father to pay the mother’s costs in a fixed sum.

At [23] his Honour made the observation that: “What is often referred to as the principle or rule in Rice and Asplund rests upon the indisputable proposition that continuous litigation about the living arrangements of children is inimical to their welfare and contrary to their best interest…”

At [42] his Honour came to the following conclusion as to the father’s contention that there had been a significant change in circumstances since the order was made:

“The father submitted that his “consent” to the continuation of the operation of the 2021 orders had been ‘withdrawn’’ and that this, together with the provision in the 2021 orders being for a future change to the regime regulating the parenting of the children, in and of themselves, were a sufficient change of circumstances to revisit the parenting enquiry. Again, albeit not part of the submissions made to the primary judge, nor specifically identified as a ground of appeal, the father contended that a parenting order with prospective effect, that no longer enjoyed the necessary support of both parents, generated the requisite change in circumstances to achieve a Rice and Asplund threshold. For the reasons identified earlier, such complaint is not available on appeal.”

At [43] his Honour also added: “Further, the father did not identify any authority or reasoning to support this original and novel contention…”

Whitehill & Talaska

Whitehill & Talaska [2024] FedCFamC2F 768 was decided in July 2024 and was one of the first reported cases decided by the FCFCOA after section 65DAAA commenced. In this case the mother applied to vary parenting orders that had been made only about a year earlier. Judge O’Shannessy considered whether the rules and practices developed over the years with respect to the application of the principles in Rice & Asplund still applied in light of the introduction of section 65DAAA. In that regard, their Honour made the following observations at [20] to [27]:

“20. For the purpose of this interim hearing on the papers, subject to the issue of whether there is any difference of substance between the section 65DAAA “has considered” whether there is a change or circumstances and the previously frequently expressed “must have” a prima facie significant change of circumstances in the rule in Rice & Asplund, section 65DAAA, more or less, replicates the basic or foundational aspects of the rule in Rice & Asplund.

21. However, the section 65DAAA provisions do not replicate, or expressly provide, for what can be described as the consequent or attached rules developed and applied over the years. Those attached rules or procedures or practice, always adaptable to the circumstances at hand, included the following.

• New or consequent applications would usually, but not always, be dealt with as a preliminary hearing on the papers; [6] and
• The required significant change of circumstances needed to be something not contemplated by the final orders or reasons or decision [7].
• At a hearing on the papers, unless contradicted by incontrovertible evidence or the applicant’s evidence was implausible or contradictory, the evidence of the party seeking to reopen or re-litigate was accepted for the purpose of that hearing, [8] including evidence of controversial matters; and
• Further expert evidence such as a family report maybe, but would usually not be, undertaken before determination that sufficiently changed circumstances now existed that justified the further litigation; and
• A minor change to existing orders may be appropriate without the Rice & Asplund threshold being crossed. [9]

22.The consequent or attached rules made the principal rule workable. They could be described as the nuts and bolts that held the principle together or gave it a practical functionality as a working body of law as well as guidance to litigants. These rules or practice avoided an un‑charted sea of single instances or multiple disparate decisions that would exist without principles of universal application.

23.Hence the question arises whether those consequent or attached principles or rules still apply after the introduction of section 65DAAA? It is difficult to discern an intention that those previously applicable attached rules or principles should not apply from the text of section 65DAAA.

24.Although the amending Act and section 65DAAA did not expressly include or exclude those consequents or attached rules, I am satisfied that Parliament did not intend to discard the existing body of attached or consequent rules or practice of the jurisprudence of the rule in Rice & Asplund.

25.The explanatory memorandum reference to “codifying” Rice & Asplund and the references to some of the seminal authorities of the body of law of Rice & Asplund, as it does, and the absence of reference to the consequent or attached rules or practice, satisfies me that Parliament intended that those attached or consequent rules of the body of law known as the rule in Rice & Asplund should continue to apply. I am so satisfied because of the statements in [97] of the Explanatory Memorandum and the reference to “codifies existing case law” in the second reading speech and the absence of other necessary provisions and the absence of facilitative or nuts and bolts type provisions in section 65DAAA. Those flexible attached or consequent rules can be discerned from the many authorities dealing with Rice & Asplund, and some are recited above.

26.I must look for a way to promote the purpose of the new provisions. I am cautious of applying a gloss of pre-existing law to a new and specific statutory provision, and of either limiting or expanding the new statutory provision. However, those attached rules neither limit nor extend the statutory provisions of section 65DAAA. I will apply those rules unless they limit or extend the operation of the scheme of section 65DAAA.

27. Alternatively, if I am wrong about Parliament’s intention, and it is necessary to re-invent the wheel and the nuts and bolts to make section 65DAAA actually work, I am satisfied the wisdom contained in the previously applicable consequent or attached rules or previously existing case law should guide me and I will apply those rules or guidance unless they limit or extent the operation of the scheme of section 65DAAA.”

However, when interpreting the new s 65DAAA, the judge noted the statutory wording did not expressly require a positive finding of changed circumstances. The section said the court must “consider” whether there has been a change, but did not say the court must find such change before proceeding. The judge concluded that, under the new law, a court may proceed to vary final orders if it is in the child’s best interests to do so, even if no significant change is ultimately found, so long as the court has at least considered whether a change occurred.

At [83] and [84] their Honour found as follows:

“83. For the purpose of this hearing on the section 65DAAA point, I am not satisfied that the evidence, accepting the Mother’s evidence of the early 2024 incident and how she felt about the early 2024 Police Station incident and the Father’s own statements in his Intervention Order application, demonstrates that the Father’s mental health has, prima facie, deteriorated. Hence having consider whether there has been a significant change of circumstances, I am not satisfied that prima facie the Father’s mental health has deteriorated. Hence I am not satisfied that, prima facie, there has been a significant change of circumstances.

84. Whether or not there has been a significant change of circumstances, I am satisfied it is proper in this case to consider the four matters of section 65DAAA(2)(a)-(d).”

Their Honour then went on at [91] to say that “Having considered the matters of section 65DAAA(1) and the four matters and how the provisions of section 60CC apply to this case, I am not satisfied, in all the circumstances, including that there has not been a significant change of circumstances since the final orders were made, that it is in the best interests of the child for the final parenting order to be reconsidered on this interim hearing pending the August hearing.”

Their Honour then concluded at [92} that “On one view, having not been satisfied that the final orders should be reconsidered, that is the end of the matter. However, there is a further hearing in August of 2024 intended to be a more thorough examination of the circumstances. In the event that I am wrong about my conclusion that to change final orders on an interim or urgent application pending a more thorough section 65DAAA hearing is a reconsideration of the final orders, I will deal with what would otherwise be an interim application. That is, an interim application pending the more thorough examination in August, the application to suspend the Father’s time arrangements in place from April 2023 to about January 2024. Whether or not the Rubicon of section 65DAAA has been crossed, I will deal with the crisis that this family is in.”

Their Honour then proceeded to determine aspects of the matter by way of interim hearing applying the ordinary principles applicable to such hearings, and made procedural orders such as an order for the appointment of a single expert to assess the father’s mental health for the purpose of hearing in August as well as consider whether changeover orders should be varies, but ultimately concluding that the original orders should remain in force.

Their Honour’s approach to and interpretation of section 65DAAA meant the mother’s application was not summarily thrown out for lack of a significant change in circumstances; the court weighed the child’s best interests (with the fresh evidence) and was prepared to make some procedural orders to assist the parties to progress the matter. This case illustrated a more flexible, best-interests-centric approach, which some saw as a departure from Rice & Asplund.

Rasheem & Rasheem

In Rasheem & Rasheem [2024] FedCFamC1F 595 Judge Altobelli took a similar view to Whitehill & Talaska, explicitly stating that section 65DAAA operates differently from the old Rice & Asplund test. His Honour observed that the new provision “only needs the court to consider whether a significant change in circumstances has occurred,” which he deemed a “deviation” from the prior rule that mandated a definite finding of such change. Under this approach, the critical criterion was framed as the best interests of the child: if, after considering any changes (or even without any notable change), the court is satisfied it is in the child’s best interests to revisit the orders, then it may do so. In practical terms, Rasheem & Rasheem suggested that a lack of proven change would not automatically bar the application, so long as the child’s welfare strongly favoured reconsideration. This interpretation, like Whitehill & Talaska, treated s 65DAAA as lowering the threshold and giving courts more flexibility to respond to a child’s current needs.

At [53] his Honour expressed the view that: “The new statutory test espoused by s 65DAAA operates in a substantively different manner to the rule in Rice and Asplund. The Court agrees with the reasoning provided by Judge O’Shannessy in Whitehill & Talaska [2024] FedCFamC2F 768 (“Whitehill & Talaska”) in this respect. Nonetheless, these reasons shall elaborate further on why such reasoning is correct.”

At [64] to [66] his Honour stated that:

64. Section 65DAAA states that “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”. 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.

65. There is no definition of the phrase “consider” in the Act (Tibb & Sheean [2018] FamCAFC 142; (2018) 58 Fam LR 351 at [74]). The Full Court, referring to a definition in the Oxford English Dictionary (2nd edition) determined that consideration requires a trial judge to “contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of” (Goode and Goode (2006) FLC 93-286 at [60]; Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 462). The question whether a judge has engaged in the internal mental process of consideration will be answered by the “overt” and “objective” manifestations emerging from the judgment (Bielen & Kozma [2022] FedCFamC1A 221; (2022) FLC 94-123 at [42])

66. For the purposes of s 65DAAA 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” (s 65DAAA(1)(b)).”

At [143] his Honour concluded that “The Court is not satisfied that it would be in the best interests of the children for the final parenting orders to be reconsidered. The children are safe under the current arrangements and their views have been adequately considered noting their tender age. The children’s psychological and emotional needs will still be better served by attending on another treating psychologist. The children have a strong relationship with the father and his family that will only continue to be enriched through overnight time. The mother’s application under s 65DAAA of the Act must fail on these reasons alone.”

His Honour dismissed the mother’s application to reopen parenting proceedings and ordered that the parents are to comply with the final orders and the mother must not cause the children to receive therapy from the psychologist.

His Honour adopted a similarly literal interpretation of the word “consider’ in Melounis & Melounis (No 4) [2024] FedCFamC1F 778.

Radecki & Radecki

In Radecki & Radecki [2024] FedCFamC1A 246 the conflicting first-instance decisions were finally resolved by the Full Court of the FCFCOA. In that case, final parenting orders from 2015 (made when the child was 2 years old) were challenged by the father in 2023, after a breakdown in the parents’ co-operative relationship. Notably, the original orders had been made without the father’s participation, and as the years passed, the child’s situation had changed significantly. By 2023 the child was nearly 12, had been spending more time with the father by informal agreement until recently, and now under the strict original orders would see the father much less. The mother argued the father’s application should be dismissed under Rice & Asplund. The trial judge did dismiss it, finding (in line with Rice & Asplund) that there was not a sufficiently exceptional change to warrant a full rehearing. On appeal, the Full Court reversed this decision, providing crucial guidance on section 65DAAA.

The Full Court unanimously held that section 65DAAA was intended to codify, not alter, the rule in Rice & Asplund. The judges criticised the literal interpretation of the word “consider” adopted in Whitehill & Talaska, Rasheem & Rasheem, and similar cases, noting that such a reading would defeat the purpose of the reform, which was to curb unwarranted repeat litigation. They ruled that under s 65DAAA, the court must find (i.e. be satisfied of) a significant change in circumstances as a condition precedent to reopening final orders. Simply going through the motions of “considering” change, without consequence, was not enough; a positive finding is required, or the inquiry ends. In Radecki & Radecki, the Full Court assessed the uncontroverted facts and concluded that the trial judge ought to have found a significant change had occurred (given the many developments since 2015). The failure to make that finding was an error. The case was sent back for rehearing, meaning the father’s application would be heard on its merits with the threshold now deemed satisfied.

At [73] the Full Court observed that “There is no ambiguity to be found in the Explanatory Memorandum, which specifically refers to both the intention to codify the common law rule established by Rice & Asplund and the first stage of application of the rule, requiring an applicant to establish that there has been a significant change in circumstances since the making of anterior parenting orders, before those orders can be reconsidered. A literal interpretation of the wording of s 65DAAA, as adopted in Rasheem, Whitehill & Talaska, and Melounis, is at odds with and conflicts with the context and purpose of the statute, as stated in the Explanatory Memorandum.”

At [78] and [79] the Full Court went on to conclude that:

78. The decisive factor in rejecting the literal interpretation of “consider” is because to do so results in an operation of s 65DAAA which, adopting the terminology of relevant authorities, is absurd, irrational, and capricious, contrary to Parliamentary intention and may result in unintended undesirable consequences, as observed above. In other words, s 65DAAA would not rectify the mischief, being unfettered applications to revisit parenting orders, to which it is directed.

79. We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of “consider” should not be a literal one. The word “consider” in s 65DAAA 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 anterior 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 by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).”

Radecki & Radecki is presently the leading authority on 65DAAA. This decision confirmed that section 65DAAA imposes the same two-stage test as Rice & Asplund (significant change as well as best interests) and that both limbs must be met before final orders are revisited. The decision has effectively settled that the strict approach prevails: the initial flexible interpretations were incorrect, and the law in Australia remains that final parenting orders will not be lightly disturbed.

LEGAL PRINCIPLES

Statutory Threshold

Section 65DAAA (titled “Reconsideration of final parenting orders”) establishes a two-limb test that must be satisfied before a court will reopen a finalised parenting arrangement. In essence, “if a final parenting order is in force in relation to a child, a court must not reconsider the order unless” both of the following conditions are met. The two conditions are discussed below.

Test

The two conditions referred to above are as follows:

• The court has considered whether there has been a significant change of circumstances since the final parenting order was (as discussed below, case law makes clear the court must actually find such a change exists for the application to proceed); and
• The court is satisfied that, in all the circumstances (taking into account any change of circumstances), it is in the child’s best interests for the final order to be reconsidered. In other words, even with a change in circumstances, reopening the case must benefit the child enough to outweigh the value of finality.

This statutory test mirrors the long-standing Rice & Asplund rule. In other words, a prior final order will only be revisited if a substantial post-order change makes it necessary to inquire again into the child’s best. Not every change that occurs after final orders are made, even sometimes changes that are material, will necessitate a change in existing final parenting orders. The threshold is intentionally high, reflecting the principle that it is generally not in a child’s best interest to be subjected to repeated litigation between parents or ongoing uncertainty about. Section 65DAAA thus aims to balance two core policies: the need for stability and finality in children’s arrangements, and the need to adapt orders when genuinely required for the child.

Meaning of “Significant Change”

What amounts to a “significant change of circumstances” is not exhaustively defined in the Act, but it implies a material change of such magnitude or nature that the existing orders may no longer serve the child’s best. The change must be more than trivial or expected; it should be a development that was not contemplated at the time of the original orders and that justifies disturbing the child’s established. Some examples that have been recognised in case law include:

• Relocation, i.e., one parent proposes to move a substantial distance away (interstate or overseas) in a way that was not foreseen when the original orders were. A relocation can disrupt existing time arrangements and may warrant new orders.
• Changed views of the child, i.e., as children grow older, their needs and wishes can evolve. For instance, a teenager’s preferences or circumstances may be markedly different from when they were a toddler, and a court might consider those new views if enough time has passed since the last orders.
• Capacity, i.e., significant changes affecting a parent’s capacity to care, such as a serious deterioration (or improvement) in mental health, substance abuse issues, family violence, or other critical aspects of parenting ability, can constitute a material.

These are just examples; the assessment is case-specific. The court must exercise a discretionary judgment in determining if the applicant’s evidence establishes a prima facie change and in weighing the importance of that change against the potential harm or benefit of reopening the case. In making this threshold decision, judges often ask: have circumstances changed so significantly that the child’s welfare now requires the court to revisit the earlier order? If the evidence, viewed liberally, raises this question, the threshold may be met. If not, the inquiry may end there.

“Best Interests” of the Child

Satisfying the “significant change” limb is necessary but not enough on its own. The court must also be convinced that reopening the case is affirmatively in the child’s best interests, considering all the circumstances. This inquiry is distinct from the ultimate question of what new parenting orders should be made; it is a preliminary best-interests assessment focusing on whether the benefits of litigating a change outweigh the costs (emotional, financial, and otherwise) of re-litigating. The paramount consideration in any parenting matter remains the best interests of the child as per section 60CA of the Act, and section 65DAAA ensures that this principle governs the decision to reopen a finalised case as well.

Section 65DAAA (2) provides a non-exhaustive list of factors the court may consider when deciding if, “in all the circumstances,” it is in the child’s best interests to reconsider the final orders:

• “The reasons for the final parenting order and the material on which it was based”. The court will look at what assumptions, findings, or agreements underpinned the original arrangements. If those foundations have been altered by new events (e.g. a factor critical to the original decision has changed), reopening may be more justified.
• “Whether any material is available now that was not available at the time of the original order”. For example, if new information has come to light (such as reports of abuse, a diagnosis, or other significant facts unknown earlier), this can weigh in favour of reconsideration.
• “The likelihood that, if the court reopens the case, a substantially different parenting order will be made (e.g. varying, suspending or discharging the current order in a significant way)”. The court will not embark on a rehearing if it appears unlikely to result in any meaningful change. In other words, if the outcome of reconsideration would probably be the same as the status quo, there is little point in putting the child through further proceedings.
• “Any potential benefit, or detriment, to the child that might result from reconsidering the final order”. This factor encapsulates the pros and cons for the child of having the litigation reopened. Potential benefits might include improved living arrangements, better protection, or aligning orders with the child’s current needs. Potential detriments include stress and uncertainty for the child, delay in having a stable routine, or the conflict that litigation can inflame between parents. The court will weigh these carefully.

These factors guide the court’s holistic assessment of best interests at the threshold stage. A key underlying policy is that children generally benefit from finality. They should be able to rely on court orders and not face frequent changes or fresh disputes. Thus, even if a parent has experienced a change in circumstances, the court might still refuse to reopen the case if doing so would yield only a marginal benefit to the child (or cause more harm than good). Only if the likely advantage to the child’s welfare from reconsideration outweighs the disadvantage of further litigation will the court move past this gatekeeping stage.

Timing and Context

The nature of the change and the time elapsed since the original orders are relevant. A major unforeseen event shortly after final orders could qualify, but generally the longer it has been since the orders, the more likely normal life developments (schooling, remarriage, etc.) could amount to a significan. Conversely, an application to change orders made very recently will face scepticism unless it rests on truly new information (for example, new evidence of risk to the child that was unavailable earlier). Importantly, even where an order itself contemplates future adjustments (e.g. an order foreshadowing review when a child starts school), a party still must show actual changed circumstances or new facts that justify court intervention, rather than an automatic right to reopen.

PROCEDURAL REQUIREMENTS

Pre-filing Steps

A parent who wishes to revisit final parenting orders should first attempt less adversarial solutions by complying with the Court’s pre-action procedures. It is usually advisable (and often required) to try to negotiate the changes with the other parent and engage in Family Dispute Resolution (mediation) before resorting to court, provided it is safe to do so. If agreement is reached, the parties can formalise their agreement by filing consent orders or by making a parenting plan (which, while not enforceable as an order, can override the old orders if both parties agree). Only when negotiations fail, and if there is a genuine belief that circumstances have significantly changed such that the best interest of the children now warrant a change to the existing orders, should a party proceed to file a court application. Note that as with any parenting proceeding, certain pre-action procedures and requirements apply, such as obtaining a mediation certificate under s 60I of the Act, unless an exemption like urgency or risk of harm is applicable: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Schedule 1.

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (Rules) and the FCFCOA’s Central Practice Direction provide further guidance on the applicable procedure. The FCFCOA’s website information page “Applying to the Court for Orders – Family Law” also provides useful information and links to Court forms and other publications.

Application

To have final orders reconsidered, the parent must initiate a new application (or an application in the existing proceedings, if still on foot) for parenting orders. From a procedural standpoint, this is much like filing for parenting orders the first time. The applicant will normally file an Initiating Application (or Application in a Proceeding, but only if the original proceedings are still on foot, which would normally not be the case if there are existing final orders in place) in the FCFCOA and prepare an affidavit setting out the evidence. Importantly, the supporting affidavit should explicitly address the section 65DAAA threshold. In other words, it must set out the facts that address the significant changes in circumstances since the last final orders and explain why those changes make a new arrangement necessary in the child’s best interests. The court will expect a party seeking variation to candidly acknowledge the existing final orders and present a compelling case that something materially has shifted. Failing to do so can be fatal to the application.

Threshold Determination (Gatekeeping Hearing)

Once the application is filed and served, the court will typically consider the Rice & Asplund / section 65DAAA issue as a preliminary question. This can occur at a discrete interim hearing at the beginning of the new proceedings or at least as a threshold issue at the start of substantive proceedings. The respondent (other parent) will often argue in response that the application should be dismissed outright for not satisfying section 65DAAA. In essence, this functions as a request to refuse “leave” to reopen the case, although leave is not a formal requirement – it is a question of discretion under the Act. The court may hear concise evidence and submissions focused on whether the requisite change of circumstances exists and whether reopening would be in the child’s interests. If the judge is not satisfied that the section 65DAAA criteria are met, the court must not proceed to reconsider the parenting orders. In such a scenario, the application will be dismissed at the threshold stage without a full rehearing of parenting issues. This approach prevents parents from relitigating settled matters absent a truly justified cause.

It should be noted that the threshold can be addressed at any stage of proceedings, even, for example, at the outset of a final hearing, if it becomes apparent that the evidence of changed circumstances is lacking. However, judicial practice is often to deal with it early (to avoid unnecessary expense and delay). The court’s refusal to reconsider the orders (for failure to pass the threshold) is typically a final outcome on that application, though the applicant might appeal or later file a fresh application if circumstances evolve further.

Proceeding to a Rehearing

If the court is satisfied that a significant change has occurred and that revisiting the orders is in the child’s best interests, it will allow the matter to proceed to a full reconsideration. At that point, the case essentially moves into the familiar terrain of a parenting dispute. The judge (or sometimes a Registrar at first instance) may make interim orders if needed, may order the preparation of a Family Report or appointment of an Independent Children’s Lawyer in appropriate cases, and ultimately will determine what new parenting orders (if any) should be made in light of the current circumstances and the best interest factors in section 60CC. The original orders do not simply get thrown out; they are the backdrop, but the court will decide afresh what arrangement will best promote the child’s welfare moving forward, given the changed situation. The final result might be varied orders, suspended or discharged orders, or potentially even confirmation of the existing orders (if, after full review, the court finds the status quo was still appropriate). In any event, by passing the section 65DAAA threshold, the case merits a re-hearing on the merits of what orders serve the child’s best interests now.

CONCLUSION

Parties should approach an application to change final parenting orders with caution. Because of the strong policy favouring the finality of orders, a weak or unmeritorious application can lead to adverse consequences. If a parent attempts to re-open a case without clear evidence of a significant change, the court may not only dismiss the application but can also order them to pay the other party’s legal costs for needlessly dragging them back to court. The FCFCOA has emphasised that parents must carefully consider the practical benefit to the child of reopening the litigation, as the harm of renewed conflict and uncertainty may outweigh any minor improvements sought. In short, section 65DAAA makes the threshold a formidable gate. It is meant to screen out cases of mere dissatisfaction with earlier outcomes and only let through those matters where changed circumstances genuinely call the previous arrangements into question.

The best family lawyers and divorce lawyers in Sydney are well-versed in the above family law parenting principles. At Gramelis Attorneys, we’re experienced at handling complex family law parenting matters, including reopening of parenting proceedings where warranted, so feel free to give us a call today to speak with one of our friendly and experienced lawyers on how we can help, and arrange a consultation at one of our convenient locations across Sydney, including Bankstown, Double Bay, Bondi Junction and the Sydney CBD.

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