Changing final parenting orders – Radecki & Radecki [2024] Can you or can’t you? And if so, when?

Amy Ryan – Special Counsel

Background

In May 2024, section 65DAAA of the Family Law Act 1975 came into effect. That section seemingly (or not) attempted to codify the law on when a final parenting order could be reconsidered/changed. The leading case of Rice v Asplund (elaborated in subsequent cases) provided that for final parenting orders to be reconsidered/changed, the Court must be satisfied that there had been a ‘significant change in circumstances’ since the final orders were made, such that those orders were no longer in the children’s best interests. Consistent application of “the Rice & Asplund principle” made it clear that this was a high bar to meet. The height of the bar was underpinned by the principle that it is not in a child’s best interests to be exposed to further litigation between their parents and to ongoing uncertainty about their living arrangements.

Enter Section 65DAAA (see you later, Rice & Asplund?)

Section 65DAAA(1) 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 that it is in the best interests of the child for the final parenting order to be reconsidered, section 65DAAA(2) provides that the court may have regard to any matters that the court considers relevant, including the following:

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 (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way); and
any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

Section 65DAAA versus Rice v Asplund

The introduction of s65DAAA understandably caused a buzz amongst Family Law practitioners. Was this an actual codification of Rice & Asplund? Was this a new test?

The early case law in the aftermath of section 65DAAA kept Family Law Practitioners on the edge of their seats, as we saw nuanced interpretations and applications of the section.

Some of these cases indicated that there was no meaningful distinction between section 65DAAA and the rule in Rice & Asplund (such as Carlyon & Graham [2024] FedCFamC1F 443, Babic and Taccini [2024] FCWA 203, and Sciacchitano & Zhukov [2024] FedCFamC1A 224).

But there were several others (such as Rasheem & Rasheem [2024] FedCFamC1F 595, Melounis & Melounis (No 4) [2024] FedCFamC1F 778, Whitehill & Talaska [2024] FedCFamC2F 768, and Farnworth & Farnworth [2024] FedCFamC2F 1094) which concluded that the literal interpretation of section 65DAAA changed the test, essentially removing the requirement that there must be a significant change in circumstances since the orders were made to justify a change/reconsideration of those orders. Instead, the Court only had to ‘consider’ whether there had been such a change, as part of the overall assessment of whether it was in the children’s best interests to change the previous order.

So it seemed the landscape for these types of applications had indeed changed.

Radecki & Radecki [2024] FedCFamC2F 811

Then came Radecki.

Facts

In Radecki, the parties had one child together. Final Orders for the child’s arrangements had been made in late 2015, following an undefended hearing. The Father did not participate in those proceedings. The child was aged two at the time.

At the 2015 hearing, the evidence was the parties had a ‘quite good” relationship in the circumstances and that when it came time for the child to start school, the parties would likely be able to work out those details/decisions together, because of their quite good relationship. It transpired that the ‘quite good’ relationship did not last.

In 2023, the Father made an application for new orders which provided for the child to spend more time with him than the final orders provided for. The Mother sought that the Father’s application be dismissed, on the basis of the Rice & Asplund rule.

The Father was unsuccessful in is application, which was dismissed. The Father appealed.

On appeal, Her Honour Carew J summarised the “uncontentious facts” of the case as follows¹:

That the final parenting order was made in 2015 when the child was two and he is now nearly 12 years of age;

That the order on its face contemplated a reconsideration of the parenting orders;

That by agreement, the father had spent more time with the child than was provided for in the final parenting order until September 2022;

That the parent’s previous cooperative relationship had broken down;

That in accordance with the strict provisions of the final parenting order, the child would spend no more than one night a fortnight with the father; and

That the final parenting order was made in the absence of the father.

Judgment of Austin & Wiliams JJ

Their Honours Austin and Williams JJ concluded that “the context and purpose of the new statute was to codify the rule in Rice and Asplund and existing case law”² and that adopting a literal interpretation of ‘consider’ would not “rectify the mischief, being unfettered applications to revisit parenting orders, to which it is directed.”³

Their Honours therefore concluded that section 65DAAA should be construed to mean that a ‘significant change of circumstances’ must be established before the court can reconsider final parenting orders.

Their Honours were persuaded that “the primary judge should have found a significant change in circumstances and failed to apply the correct legal principles for the first stage of the process prescribed by s 65DAAA of the Act.”⁴ and remitted the case for rehearing.

Judgment of Carew J

Her Honour Carew J agreed that leave to appeal be granted and the appeal allowed, because “the primary judge erred in failing to find that there had been a significant change in circumstances”⁵ given the uncontentious facts set out above.

With regard to the correct interpretation of section 65DAAA, Her Honour took the view that “s65DAAA reflects an orthodox statement of the rule which has for decades been applied”⁶ and that the “drafting of s 65DAAA manages to achieve the subtleties of the rule in Rice and Asplund as expressed in the various permutations over the decades.”⁷

With respect to the alternative, literal interpretation of the section, Her Honour said, “The suggestion that a court would consider whether there has been a significant change in circumstances without it having any consequence is an interpretation which would give no effect to s 65DAAA(1).”⁸

So what now?

Radecki has made it clear that an applicant who seeks to vary a ‘final’ parenting order, must first establish that there has been a significant change in circumstances since the final order was made, before the Court can reconsider the order.

What will constitute a ‘significant change of circumstances’ will depend on the specific facts of the particular case, and anyone seeking to have their final parenting orders changed or reconsidered should always obtain specialist Family Law advice before making an application.

As specialist Family Law solicitors, we are highly experienced in dealing with applications to vary parenting orders. We can provide you with realistic and practical advice regarding your situation and assist you to develop a case strategy to maximise your prospects of success.

Radecki & Radecki [2024] FedCFamC2F 81 at paragraph 135.
ibid. at paragraph 77.
ibid. at paragraph 78.
ibid. at paragraph 89.
ibid. at paragraph 135.
ibid. at paragraph 127.
ibid. at paragraph 129.
ibid. at paragraph 128.

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