This article provides general information on what the Federal Circuit and Family Court of Australia (‘the court’) considers when determining if it is appropriate to reopen the parties’ court matter to vary final parenting orders.
Rice v Asplund (1979)
Prior to the commencement of section 65DAAA of the Family Law Act 1975 (Cth), the court followed the rule established in Rice v Asplund. This matter concerned the living arrangements of a three-year-old child.
The original final order held that the child was to live with the father and spend time with the mother.
Approximately nine months after the final order was made, the mother made an application to vary the final order due to the mother’s significant change of circumstances. Since the final order, the mother had remarried and stabilised accommodation.
The mother’s application was successful as the court was satisfied there was a significant change of circumstances, and as a result the original final order no longer reflected the best interest of the child.
This rule is intended to prevent exposing a child to further family court proceedings which would not be in their best interest and be detrimental to the child.
Section 65DAAA Family Law Act (Cth) 1975
Introduced in the Family Law Amendment Act 2023 (Cth), section 65DAAA codifies the rule established in Rice v Asplund which came into effect on 6 May 2024.
Section 65DAAA has a two-stage process which the court must be satisfied with to reconsider final orders and exposing your child to further court proceedings.
The court must firstly be satisfied that there has been a significant change since your final parenting order was made.
If the Court is satisfied there has been significant change of circumstances, the court must then determine whether it is in the best interest of the child for the final parenting order to be reconsidered.
The court will consider the six general considerations under section 60CC(2) of the Family Law Act and further the list in section 65DAAA(2) which is as follows:
Changing Parenting Orders
If you are seeking to change your final parenting order, you should contact a lawyer and obtain professional advice. You can then choose to contact your former partner through your lawyer or contact them directly if it is safe to do so and propose the change you are seeking.
You can attend a Family Dispute Resolution Service which would provide a safe environment for you and your former partner to resolve the dispute, with the assistance of a Family Dispute Resolution Practitioner.
If you and your former partner agree to the changes, you can then draft consent orders for the approval of the Court. The Court would review the orders and ensure they comply with the Family Law Act 1975 (Cth). Therefore, you and your former partner would not be required to appear in Court.
If you cannot reach an agreement with your former partner to vary the orders, then you may consider bringing an application to the Court to have the orders varied, discharged, or suspended without agreement. Before considering making the orders you seek, the Court will first apply the tests as set out earlier in this article. There can be risks of legal costs to an unsuccessful applicant seeking to re-litigate previously made final orders, and so any such application should be considered carefully with the help of an experienced solicitor.
Next steps
If you or someone you know wants more information or needs help or advice with their family law matter, please contact our Intake team on (03) 8415 5600 or email us at reception@hartleyslawyers.com.au.
This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.