In the wide-ranging changes to the Family Law Act passed in 2023, the Parliament made a variety of changes focused on parenting considerations, simplifying and clarifying in its view how parenting proceedings should work in the family law Courts.
It had been a long-standing feature of the case law that the way to revisit / reopen parenting orders was fairly limited – a landmark case from 1979, called Rice & Asplund, set out that a significant change in circumstances was required since the original orders were made.
Part of the suite of changes from 2023 was a proposal to ‘codify’ or put this principle into the actual Act. The Parliament went ahead and did this through a section, s65DAAA, which provides that:
- The Court has considered whether there has been a significant change of circumstances since the final parenting order was made;
- The Court is satisfied that in all the circumstances, 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.
Did this actually just codify Rice & Asplund? As it turns out, the Court is now deciding in at least two decisions, no. It appears to have significantly widened the test, such that the test is now about the best interests of a child, including ‘taking into account’ whether a significant change of circumstances, and simply ‘considering’ whether there has been such a change. That does not mandate there actually having been such a change.
This means that the overall best interest of a child reign supreme and the test from Rice & Asplund is now widened. The decisions so far made on this are simply ‘first instance’ decisions and the appeal level of the Court has not yet weighed in, but this is a developing area of the law to watch and consider with your family law lawyer. Call us at Nevett Ford now to discuss whether your situation might justify a set of revisited parenting orders.