Can I apply to apply to the Court to vary final parenting Orders?

Senior Associate, Dianne Caruso discusses whether the Court may vary final parenting Orders.

Does section 65DAAA differ from the rule in Rice & Asplund?

Section 65DAAA of the Family Law Act 1975 sets out the test applicable as to whether the Court may vary final parenting Orders made.

This section came into effect on 6 May 2024 and was intended to codify the established case law principle, commonly referred to as the rule in Rice & Asplund, per the Explanatory Memorandum to the Bill. Recent case law considers whether the test imposed by s 65DAAA differs from the previous test applicable under the case law.

Section 65DAAA provides:

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.

In the recent decision of Rasheem & Rasheem [2024] FedCFamC1F 595 the Court considered this provision and the extent to which it varies from the case law principle.

In regard to s 65DAAA, Altobelli J stated:

64. …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.

…

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)).

He cited the decision of Whitehill & Talaska [2024] FedCFamC2F 768 and stated:

68. The Court accepts Judge O’Shannessy’s proposition that, whilst it is mandatory to consider whether there has been a significant change of circumstances, such a change of circumstances is not a prerequisite to allow a reconsideration of a final parenting order under s 65DAAA of the Act. Other factors enunciated in s 65DAAA(2)(a)–(d) can inform the discharge of the statutory duty, especially if their evidentiary value outweighs the mere fact that significant change has not occurred.

He went on to state:

70. … Even the rejection of an application under this section requires the Court to consider s 60CC of the Act. This is addressed as the affirmative duty under s 65DAAA(1)(b) to not reconsider a final parenting order unless “it is in the best interests of the child for the final parenting order to be reconsidered”. This is an unfortunate step that is likely to increase the amount of potentially unnecessary litigation that children are exposed to. The underlying rationale for rejecting a Rice and Asplund application is unintentionally ignored by s 65DAAA. This renders the adjudicative process required under s 65DAAA different from that under the former rule in Rice and Asplund.
…
72. Before the Court adjudicates, there is no method to determine whether an application under s 65DAAA is a parenting order, or not. Although semantic, it is important to maintain a distinction between orders of different natures. For example, a successful application under s 65DAAA is a parenting order, and it may therefore require the parties to attend mediation and to file a s 60I certificate. Alternatively, the dismissal of an application under s 65DAAA is not a parenting order, and these procedural requirements are unnecessary. Given that neither party can know whether the application will be successful or fail before judgment is delivered, arguably all parties are required to engage in these procedural hurdles. This will generate additional cost and delay if the s 65DAAA application is dismissed.

In summary, the Court highlighted differences between the previously applicable case law principle and that imposed by s 65DAAA including:

1. The Court no longer needs to make a finding that there has been a significant change in circumstances in order to revisit final parenting orders. It only needs to consider whether there has been a significant change in circumstances. If there is no finding of a significant change in circumstances, this does not prevent the Court from revisiting the orders.
2. Consideration by the Court of the factors set out at s 65DAAA (2)(a)-(d) can inform the discharge of the statutory duty of the Court, in particular if their evidentiary value outweighs the fact that a significant change in circumstances has not occurred.
3. In order to revisit final parenting Orders, the Court must be satisfied that in all the circumstances, it is in the best interests of the child to do so. The Court must therefore consider s 60CC of the Act in regards to a child’s best interests.
4. Even though an application under s 65DAAA may be dismissed by the Court, the parties will not know whether or not it will be successful. A successful Order would constitute a parenting Order and therefore the parties are arguably required to satisfy procedural hurdles before making an application to the Court for parenting Orders, including participation in mediation/filing of a section 60I certificate.

In the recent decision of Babic and Taccini [2024] FCWA 203, O’Brien J found that the distinction highlighted by Altobelli J regarding the Court no longer needing to be satisfied that a significant change of circumstances had occurred, although accurate, was “a distinction without a meaningful difference” (para. 17).

He went on to state:

18.  Absent appellate intervention the starting presumption on the commencement of new parenting proceedings must be that the primary orders were correct – that is, that they were in the best interests of the children at the time they were made. That presumption is capable of rebuttal by cogent evidence that a material factor was not disclosed at the primary hearing; failing that, it must follow that it cannot be in the best interests of the children to discharge or vary those orders unless there has been a relevant change in circumstances since they were made.

19.  In my view, notwithstanding that the authorities which established them predate the legislative amendment, the following principles remain intact:

1. 1. 1. The rule as now codified applies in every case in which final parenting orders are sought to be discharged or varied subsequently. It recognises the benefits of finality of litigation, while also recognising “that considerations acutely relevant to a child’s best interests can change, including, for example, by reference to the child’s age and level of maturity”.
      2. The consideration of s 65DAAA can occur at any stage of the proceedings.
      3. An order dismissing an application for parenting orders following the application of s 65DAAA is not itself a parenting order. In my view, neither is an order at a preliminary stage declining to dismiss the application, without more. Nevertheless, the consideration of s 65DAAA is a manifestation of the “best interests” principle. The nature and extent of the court’s consideration of the matters set out in s 60CC will depend on the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.
      4. Where the consideration of s 65DAAA occurs at a preliminary stage, when the evidence is not tested, the applicant’s evidence must be considered at its highest but the matter is nevertheless determined on its merits, and not by reference to the principles applied to applications for summary dismissal.
      5. That common law position is supplemented by the express provisions of s 65DAAA(2). That provision permits consideration of the reasons for the final parenting order and the material on which it was based, whether there is any material presently available that was not available to the court which made the final parenting order, the likelihood that if the case proceeds to conclusion a new parenting order significantly affecting the operation of the existing order will be made, and any potential benefit or detriment to the child that might result from reconsidering the final order.

It is important to ensure before making an application to the Court to vary final parenting Orders that the particular circumstances of the case satisfy the test which enables the Court to revisit those Orders. There can otherwise be consequences such as costs orders being made against the unsuccessful applicant.

If you require any advice regarding varying final parenting orders, please do not hesitate to contact HHG Legal Group, so one of our lawyers can assist with your enquiry

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*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.