Are final parenting Orders really final?

When final Orders are made in relation to parenting arrangements, the intention is that those Orders will remain in force until a child turns 18. The Court considers the finality of Orders to be important to avoid a situation where children are continued to be impacted (directly or indirectly) by parents engaged in endless litigation about their care arrangements. However, sometimes things change and final parenting orders become inappropriate or impracticable. As Family Lawyers we are often asked whether those Orders can be reconsidered.

Previously, the answer to this question was found in Case Law. You may have heard lawyers talking about the “Rice and Asplund Rule”, which requires parties to establish that there had been a “significant change in circumstances” before the Court would consider varying an existing final parenting Order. This covered things like a parent moving interstate, there being issues of child abuse etc, and provided a fairly high threshold for parents to meet before final Orders could be reconsidered.

However, significant amendments are being made to the Family Law Act, and the inclusion of a new section (section 65DAAA), which codifies (i.e. legislates) this rule, with some changes. These amendments come into effect on 6 May 2024, and apply regardless as to whether the final Orders came into effect before or after that time.

In relation to contested applications to reconsider final Orders (i.e. applications where there is not consent by all parties), Section 65DAAA(1) of the Act will now state:

If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:

(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

(b) 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.

This means that the Court is no longer required to actually decide that there has been a significant change in circumstances in a contested application to revisit final Orders, only now being required to consider whether there has been such a change or not (which may or may not be a determinative consideration). Instead, the focus is on the child, and the Court must be satisfied that a reconsideration of the final Order would be in the best interests of the child.

In practical terms, this means that the Court can now reconsider a final Order if it would be in the best interests of the child to do so, even if nothing substantial has changed since the final Orders were made. This new section of the Act will inevitably be tested by the Courts and we will learn in time just how reluctant the Court will be to vary final parenting Orders moving forward in light of the legislative changes. However, we anticipate that the Court will remain hesitant to allow further litigation about a child after final Orders are made unless changes really are needed to the final Orders.

If you have any queries about anything raised in this article, or Family Law in general, please do not hesitate to reach out to the team at elringtons.

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