One of the most significant amendments brought about by the Family Law Amendment Act 2023, which commenced on 6 May 2024, was the codification of a case known as Rice v Asplund[1] which can now be found at section 65DAAA of the Family law Act 1975.
Known as the Rice v Asplund principle, this case established the circumstances in which the Court would consider a variation to final parenting orders, where it was satisfied that:
- There had been a significant change of circumstances; or
- There was a factor that had not been disclosed at a prior hearing which would have been material to that child’s welfare.
The settled reasoning for this was simply that repeated litigation was not in the best interests of children. The approach taken was that the Court would need to be satisfied of a change of circumstances to justify the serious step of changing final orders.
The recent decision of Whitehill & Talaksa[2] considered closely the wording and application of this principle. The case concerned orders for a 3-year-old child. Orders had previously been made by consent when the child was 1 year of age, granting shared parental responsibility to both parties, for the child to live with the mother and providing increasing time with the father. The mother subsequently brought an application to vary the final orders on the basis that the child was having no time with the father. The mother further sought orders for sole parental responsibility, a suspension of the time spend orders, and a Child Impact Report and a psychiatric assessment of the father.
Judge O’Shannessy noted that:
- “Final Orders are meant to be final…Although always considered through the prism of the best interests of the children, the frequently accepted or orthodox recitation of the rule in Rice & Asplund, required that there must be a prima facie change of circumstances sufficient to justify embarking upon a further inquiry as to what parenting orders were in the best interests of the children with all the trouble, grief and strife for all involved that often entailed.”
- The wording of section 65DAAA does not require the court must find a sufficient change of circumstances, and a finding of “no change” would not preclude a court from varying final parenting orders if it was in the best interests of the child.
In a subsequent case of Rasheem & Rasheem, [3] the mother sought to reconsider final parenting orders made regarding two children aged 6 and 4, after a 7 day final hearing in 2023, just under a year after orders had been made. In that case orders were made for a gradual increase of time between the father and the children, commencing with supervised time. In this case the mother argued that the children had an adverse reaction to their time with the father, stating they were fearful of him, and the mother raised issues regarding the father’s mental state and parental capacity. The mother produced evidence from the children’s psychologist which warned her against allowing overnight visits to proceed in accordance with the orders.
In considering the application of section 65DAAA Justice Altobelli noted:
- Rice & Asplund mandated a finding of a significant change in circumstances whereas section 65DAAA merely requires that a court must not reconsider a final parenting order unless it has considered whether there has been a significant change in circumstances since the final parenting order was made.
- Given the only requirement is for the Court to consider whether a significant change in circumstances has occurred, the weight afforded to such change in circumstances is varied having regard to the facts of the matter.
- Therefore, section 65DAAA does not require a change in circumstances, rather, where there is or is not a change in circumstances must merely be considered.
- The fundamental criteria that must be satisfied to reconsider a final parenting order, is simply that in all the circumstances it is in the children’s best interests for the order to be reconsidered: section 65DAAA(1)(b).
In summary, His Honour agreed with Judge O’Shannessy insofar as that whilst it is mandatory to consider whether there has been a significant change in circumstances, this is not a prerequisite to allow a reconsideration of final parenting orders. Further, other factors can inform the Court’s decision, such as the reason the orders were made, the material upon which the decision was based and whether there is additional evidence that can be produced that was not available at the time the original parenting order was made.
[1] Rice and Asplund (1979) FLC ¶90-725
[2] Whitehill & Talaksa [2024] Fed CFam C2F 768
[3] Rasheem & Rasheem [2024] FedCFamC1F
