It is often the case that parties enter into final parenting Orders when children are young and over the subsequent years, for a multitude of reasons, a party may feel that those Orders are no longer serving the best interests of the children and seek to change those Orders. The difficulty then faced by that party is that the Court is hesitant to reopen final parenting Orders due in large to recognition of the multi-faceted and serious detriment suffered by children who are subject to litigation.
Accordingly, the Court’s position is that children should be exposed to as little litigation as possible such that in order to reopen final parenting Orders a party must satisfy the Court that there has been a significant change in circumstances since the final Orders were made. The precedent for this threshold test is found in the Full Court of the Family Court of Australia’s decision in Rice v Asplund.
In May 2024, amendments were made to the Family Law Act 1975 that effectively legislated the threshold test the Court had previously been applying from Rice v Asplund. Section 65DAAA of the Act now provides that a 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; and
- 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.
For the purposes of determining whether the Court is satisfied as to the above two factors, the Court may have regard to all of the usual factors set out under section 60CC of the Act in addition 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; and
- any potential benefit, or detriment, to the child that might result from reconsidering the final parenting Order.
There is no pre-determined list of circumstances which give rise to satisfaction of the threshold test as this will always depend on the particular circumstances of a matter. If you are asking yourself whether your circumstances reach the threshold necessary for the Court to reopen final Orders, we recommend seeking tailored legal advice.
