Final parenting Orders are made every day, either by consent, or following protracted litigation in the Federal Circuit and Family Court of Australia. It is intended that final parenting Orders apply and operate until the children turn 18 years old. However, it is sometimes necessary for final parenting Orders to be reconsidered prior to their expiry to ensure that the Orders continue to operate in the best interests of the children.
Commencing 6 May 2024, the Family Law Act 1975 will be amended to insert a new section 65DAAA into the Act; this new section of the Act will specifically deal with the reconsideration of final parenting Orders (something which previously has only been dealt with by case law).
The new section 65DAAA will state:
If a final parenting Order is in force in relation to a child, 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; and
The Court is satisfied that, in all 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.
The new section 65DAAA will apply to all matters before the Court from 6 May 2024.
The new section 65DAAA is a codification of the principle set out in the case of Rice & Asplund, which provides that the Court should only hear an application to alter an earlier parenting Order if the Court is satisfied that there has been a material change in circumstances such that a rehearing of what is in the children’s best interests is warranted.
When deciding whether there has been a significant change in circumstances, such to justify the reopening of the proceedings, the judicial officer is required to make a discretionary decision about whether the Applicant’s evidence demonstrates a prima facie change in circumstances and weigh the significance of that change, against the potential benefit or detriment to the children caused by the reopening of the proceedings.
What is a significant change in circumstances?
With the amendments not due to come into effect until 6 May 2024, there is no current case law outlining what the Court considers to be a significant change in circumstances. However, until such case law exists, it is expected that the Court will have regard to previous case law which has dealt with the principle set out in Rice & Asplund.
Rice & Asplund considers material changes in circumstances; examples of which include:
A decision by one of the parties to relocate which was not contemplated at the time of the final parenting Orders being made;
The views of a child in circumstances where time has elapsed since the making of the final Orders; and
A change in a parent’s mental health and wellbeing.
A further discussion about what is classified as a material change in circumstances can be found here.
The Court does not entertain applications to amend or set aside an earlier parenting Order lightly. If you are considering such an application it is important that you obtain specialist family law advice. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.