By Zak McMurray – Lawyer
Final parenting orders can be changed if everyone agrees. It is more complicated if there is no agreement.
In the recent decision of Radecki[1], the Full Court of the Federal Circuit and Family Court of Australia (Full Court) clarified the operation of s 65DAAA of Family Law Act 1975 (Cth) (Act).
Section 65DAAA deals with the reconsideration of final parenting orders and came into effect on 6 May 2024.
Section 65DAAA, amongst other things, states (our emphasis):
- 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 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.
The law prior to 6 May 2024
Prior to 6 May 2024, common law (i.e. judge made law) principles were applied to applications to reconsider final parenting orders. The relevant legal test became known as the rule in Rice and Asplund.[2]
The rule in Rice and Asplund required the Court to make a positive finding that there had been a significant change in circumstances since the final orders were made before permitting the application to reconsider the final order to proceed. In doing so, the Court was required, as always, to take into account the best interests considerations in s 60CC of the Act.
When s 65DAAA was introduced, Parliament indicated it intended to codify the rule in Rice and Asplund to incorporate the common law rule into the Family Law Act legislation.
A state of confusion?
A string of single judge decisions between May 2024 and December 2024 created somewhat of a state of confusion regarding the operation of s 65DAAA.
Not all judges were aligned about whether the Court was still required to make a positive finding that there had been a change of circumstances (the situation before the 6 May 2024 amendment), or whether they now only needed to “consider” whether or not there has been a significant change.
Judge O’Shannessy in Whitehill & Talaska[3]and Altobelli J in Rasheem[4]and Melounis[5]took a literal approach to the meaning of the word “considered” in s 65DAAA(1)(a).
As a result, their Honours formed the view that it was enough to simply “consider” whether there had been a significant change of circumstances. Even if there was no significant change of circumstances, the Court could change final parenting orders if it was in the child’s best interests for the Court to do so. These decisions imply that s 65DAAA did not codify the rule in Rice and Asplund. This interpretation would broaden the situations in which a change of final parenting orders would be considered.
On the other hand, Schonell J in Carlyon & Graham[6], O’Brien J in Babic and Taccini[7], andAldridge J in Sciacchitano & Zhukov[8] each formed the view thats 65DAAA did not represent a meaningful departure from the rule in Rice and Asplund – that final parenting orders could only be changed if there had been a significant change of circumstances. This interpretation maintained the more limited circumstances in which a change of final parenting orders would be considered.
Radecki
In Radecki, the Full Court sought to put the controversy to bed.
Austin and Williams JJ accepted that “a literal reading of “consider” in s 65DAAA(1)(a), contrary to the rule in Rice and Asplund, does not require a change of circumstances nor mandate the Court to make a finding of fact about a prima facie change of circumstances, rather the requirement is to “consider” whether or not there has been a change of circumstances.”[9]
Nevertheless, their Honours went through a technical process of statutory interpretation and said that a literal reading of “consider” would result in “an operation of s 65DAAA which… is absurd, irrational, and capricious, contrary to Parliamentary intention and may result in unintended undesirable consequences”.[10]
The Full Court, therefore, concluded that there was “no discernible”[11] difference between the threshold test in s 65DAAA(1)(a), and the common law principles established by the rule in Rice and Asplund.
For some, the Full Court’s reading down of the word “consider” may be a step too far from a statutory interpretation perspective. On one view, it could be said that was simply trying to rectify poor parliamentary drafting.
What is the law on changing final parenting orders now?
For now, based on the Radecki appeal decision, the Court will only consider changing final parenting orders if there has been a significant change of circumstances after the final orders were made. Any change to orders must also be the child’s best interests.
That may not be the end of it. The issues raised by the appeal in Radecki did not directly require the Full Court to interpret s 65DAAA. As the Full Court’s commentary on s 65DAAA was not essential to the ultimate decision in Radecki, if another appeal case on this issue reaches the Full Court, it may come to a different decision.
Statutory interpretation and technical questions aside, the practical implications for parties and practitioners are clear, at least for now.
For more information about the circumstances in which you can change final parenting orders, please visit this article by Jennifer Zekirovska, Senior Associate at Blackwood Family Lawyers.
[1] Radecki & Radecki [2024] FedCFamC1A 24.
[2] Although named after the seminal case In the marriage of Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725, the rule has been developed through numerous later cases.
[3] Whitehill & Talaska [2024] FedCFamC2F 768.
[4] Rasheem & Rasheem [2024] FedCFamC1F 595.
[5] Melounis & Melounis (No 4) [2024] FedCFamC1F 778.
[6] Carlyon & Graham [2024] FedCFamC1F 443.
[7] Babic and Taccini [2024] FCWA 203.
[8] Sciacchitano & Zhukov [2024] FedCFamC1A 224.
[9] Carlyon & Graham [2024] FedCFamC1F 443.
[10] Ibid, [78].
[11] Ibid [63].
