Can My Final Parenting Orders Be Varied or Changed?
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’ comes from the 1979 decision in 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), which the Australian Government published its intention to ‘codify’ the Rule.
In a recent decision of the Court, in interpreting and applying the new “codifying provision”, Justice Altobelli has identified that the legislation has been drafted in a way which seems inconsistent with what the Australian Government (the law maker) 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.[1]
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 considering the evidence at the time of reconsideration. In Justice Altobelli’s view, this change is likely increase the amount of potentially unnecessary litigation that children are exposed to.[2]
His Honour was acutely aware of, and set out the Australian Government’s intentions, quoting from the Explanatory Memorandum and 2nd Reading Speech made by the Attorney-General.
If the Appeal Division of the Court agrees with this interpretation then it would seem that after more than 4 decades, it may have become easier to vary Final Orders, particularly if those Final Orders were not the subject of determination by the Court following a contested hearing (i.e. consent orders).
[1] Rasheem & Rasheem [2024] FedCFamC1F 595 at para 68.
[2] Ibid at para 70.