Addendum – February 2025:
Since the posting of this article, the Appeal court has delivered a new judgment disagreeing with Justice Altobelli’s interpretation of the law. In the case of Radecki & Radecki, the Court confirmed that, consistent with the Rule in Rice and Asplund, the Court must still be satisfied there has actually been a significant change in circumstances before reconsidering a final parenting Order. This decision brings the law back in line with Parliament’s intentions and clarifies when a final parenting Order can be revisited by a Court.
The Appeal decision of Radecki & Radecki [2024] FedCFamC1A 246, is available here: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2024/246.html
For 45 years the Family Law courts have applied the same ‘Rule’ when deciding whether a Final Parenting Order can be changed – namely the parent wanting to change the Order must establish that there has been a significant change of circumstance since the making of the order before the Order can be reconsidered.
The ‘Rule’ was founded in the 1979 decision of Rice v. Asplund and is based on the notion that continuous litigation over a child or children is generally not in their best interests.
In May of 2024, amendments to the Family Law Act came into effect, including the addition of a new section (section 65DAAA), intended to ‘codify’ the Rule.
In a recent decision of the Court, in applying the new section, Justice Altobelli has identified that the legislation has been drafted in a way which seems inconsistent with what the law makers (Parliament) had intended.
The test, as contained in the new section, now requires 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”.
Whilst it is mandatory to consider whether there has been a significant change of circumstances, such a change of circumstances is not a prerequisite.
In the view of Justice Altobelli, who presides over matters in the Federal Circuit and Family Court of Australia (Division 1), the Court is now mandated to reconsider final parenting orders even in cases where a significant change of circumstances has not occurred, but it is otherwise in the child’s best interests for a reconsideration to occur, a change which is likely to increase the amount of potentially unnecessary litigation that children are exposed to.
If the Appeal Division of the Court agrees with this interpretation, then it would seem that after more than 4 decades, it may be easier to vary Final Orders, particularly if those Final Orders were not the subject of determination by the Court following a contested hearing.
You can read Justice Altobelli’s decision in Rasheem & Rasheem [2024] FedCFamC1F 595 here: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F/2024/595.html