In May 2024, significant changes were made to the Family Law Act in relation to how the Court determines arrangements for children. One of the significant changes to the Family Law Act involved codifying the principle espoused in the well-known case of Rice & Asplund. In this case, the Court decided the reasons why a Court could reconsider final family law orders. It has generally been seen not to be in the best interests of children for litigation to continue, or be ongoing. The Court found that there had to be a significant change in circumstances since the making of the final Orders.
The 2024 amendments to the Family Law Act codified this principle in section 65DAAA.
Since these amendments, there have been several judgments that deliberate exactly how section 65DAAA is to operate. The section states that the Court must not reconsider the final orders unless the court has considered whether there has been a significant change in circumstances. There is no part of section 65DAAA that states what the Court is to do once it has “considered” this question. The Court, in various judgments, was divided as to whether the section required to the Court to then go a further step and make a finding one way or another as to whether a significant change of circumstances had occurred, or a “consideration” of this issue was sufficient.
In the case of Radecki & Radecki, the Full Court of the Federal Circuit and Family Court of Australia, contemplated this question. The case involved a 12 year old child, whose parents had been separated for about 10 years. Final Orders had been made when the child was 2 years old, on an undefended basis, given that the father had not participated in the proceedings. There was a notation in the Final Orders that included that the parties intended to review the orders three months after the child started primary school. The parties had a good relationship at the time of the making of the orders, and it was submitted to the Court that they could work together to agree on the time arrangements for the child once they went to school.
The Father brought an application to re-open the proceedings approximately 8 years later, citing that the co-parenting relationship had broken down, and seeking substantially more time with the child. The trial judge declined to re-open the proceeding. However, the trial judge did not come to any conclusion as to whether or not a significant change in circumstances had occurred. Ultimately, the Full Court upheld the appeal, finding that the trial judge had not properly “considered” whether there had been a significant change in circumstances.
The case of Radecki & Radecki clarifies for parties and legal professionals how the Court should approach the application of section 65DAAA. The Court must consider whether there has been a significant change of circumstances since the making of the final orders, and make a finding accordingly. If the Court finds there is no change, then the matter is finalised. If the Court does find that there has been a significant change of circumstances then the Court will need to consider the second limb of whether reconsideration of the final orders is in the child’s best interests.
You should seek legal advice about your options in relation to seeking advice to make an application pursuant to section 65DAAA of the Family Law Act. Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.