Final parenting orders, whether they have been made by a court after a defended hearing, or whether they have been by consent after the parents have reached an agreement, are intended to be final.
However, most people’s circumstances change over time and the children who are the subject of the orders, grow over the years. We live in a relational society, and parents often enter new relationships, or the relationships they were in may come to an end, just as the relationships between the children and each of their parents develop and change over the years.
It is not unusual for family lawyers to be asked whether the parenting arrangements that are formalized in a set of orders can be changed. The answer is that they can, but it is necessary to show that there has been a significant change in circumstances since the orders were made. In 1979, the Full Court of the Family Court decided the case of Rice v Asplund – that case is authority for the rule that before a party can re-open an issue that has already been the subject of final orders, the party will need to demonstrate that there has been a material change in circumstances since the order was made. The reason for the rule was simply that the court held that it is in children’s best interests for their parenting arrangements to be stable and settled and that there needs to be a very good reason why the court would embark on further proceedings which are asking for those arrangements to be changed.
The rule in Rice v Asplund continued to govern the field of parents wishing to re-open parenting proceedings until 2024, when Section 65DAAA was added to the Family Law Act. The Full Court has held that Section 65DAAA now codifies the law that was established by Rice v Asplund.
A party who is wanting to change orders will be wanting to demonstrate that there has been sufficient change to satisfy Section 65DAAA, whereas a party who is opposing a change to the orders will be arguing that there has not been such a change to warrant the court re-opening the parenting orders.
As with the rule in Rice & Asplund, Section 65DAAA can be raised and argued in two ways. It can either be raised as a preliminary issue – the court can receive the evidence about the asserted change and then make a decision about whether there has been sufficient change to satisfy the section, or it can be argued at the end of the full hearing of the proceedings. In recent years, if a Rice v Asplund or Section 65DAAA issue was raised by the respondent to an application, the judge has usually case-managed the proceedings so that the issue is heard and decided as a preliminary issue. This makes sense, because the parties and the court usually want to know sooner rather than later if the parenting arrangements will be allowed to be re-opened and if there is a chance that they won’t, most parties don’t want to go through the expense and effort of preparing for a full final hearing only for the judge to decide that there hasn’t been a sufficient change to re-visit the parenting arrangements.
The most obvious question that anyone who is told about the rule in Rice v Asplund asks is: What sort of change is regarded as sufficiently significant to satisfy the rule?
There is no simple answer to this question – it is a matter of knowing the cases. And because this is a discretionary issue, different judges can give different answers on the same set of facts.
One of the most obvious changes is the age of the children. Take for example a set of orders that were made when 2 children were of pre-school age. It would not be surprising if the orders did not make provision for block holiday time with the non-resident parent. If the non-resident parent wanted to have the children spend time with them for half school holidays, you could be reasonably confident that by the time the children had reached late primary school, the change in their ages would be sufficient change to re-open the issue of spending time.
Another change is where each parent has re-partnered. Sometimes, the children will get on well with their parent’s new partner, and the partner’s children and sometimes they won’t get on with them at all. If they don’t get on at all with the new partner and/or their children, despite a referral to psychologists, the children might begin expressing a strong wish to live with the other parent. If that can all be proven, the other parent could reasonably expect that a court would be satisfied that there had been a sufficient change in circumstances.
Another example is where the non-resident parent has moved away a considerable distance after the marriage/ relationship breakdown, so that the parenting orders did not make any provision for spending time during the school term and only provided for holiday time. If the non-resident parent was later able to move back to the same general area as the resident parent, a court would be likely to regard that as a sufficient change of circumstances to allow the non-resident parent to commence proceedings for spending time with the children during school terms.
Section 65DAAA does not apply is the issue to be litigated was not covered by the original orders. Take for example the subject of passports and overseas travel. It is not unusual for a set of orders made fairly soon after separation to make no provision for those issues, as neither parent had any realistic prospect of being able to afford overseas travel for many years, if ever. However, either parent might re-partner and the possibility of overseas travel is suddenly very real. If the parties couldn’t reach agreement, then the parent wishing to travel could commence proceedings and Section 65DAAA, as the issue was not the subject of the earlier orders.
Change is a fact of life. Some changes that people make to their lives, or have forced upon them, make the orders for their children difficult, if not impossible, to comply with. If you are considering making a change or have had a change forced upon you and you want to know whether you can change the parenting orders, it is important to remember this rule. At Gillard Family Lawyers, we come across the impact of Section 65DAAA fairly often. Please contact one of our family lawyers if you are in this situation and want to know more.
Written by
Stephen Rugendyke
Special Counsel
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