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Can final parenting orders be amended?

Final parenting orders determined by the Court can be amended, however, the parent making the application must establish that there has been a significant change of circumstances since making the orders before those orders can be reconsidered.

 

This threshold principle came from the case law of Rice v Asplund (1979) FLC 90-725. The rule is to prevent continuous litigation over a child, as it is not in their best interests for their parents to be in ongoing litigation.

This principle safeguards a child because prolonged legal disputes over their custody generally do not serve the child’s best interest.

 

On 19 October 2023, the Family Law Amendment Act passed and included a new section 65DAAA that sets out the Rice v Asplund principle and adds a second limb to this principle. The Court cannot revisit a parenting order unless there’s proof of a significant change in circumstances and, crucially, it’s in the best interests of the child for the order to be reviewed.

 

For the Court to determine whether they are satisfied where there has been a significant change in circumstances and whether it is in the best interests of the child or children to amend the orders, the Court can have regard to any matter it considers relevant. Without limiting section 60CC factors, this can include:

  • why the final parenting order was made, and the evidence available to the Court at the time it was made;
  • any new evidence available that was not available at the time the final parenting order was made;
  • whether, if the final parenting order is reconsidered, the Court would make an order in significantly different terms; and
  • the potential benefit or detriment to the child of the final parenting order being reconsidered.

 

The reason for adding section 65DAAA is that it makes the threshold for reopening the matter more challenging and aims to prevent endless litigation.

 

The amendments to the Act provide that parents can still mutually agree to amend a final parenting order.

It is always best to avoid litigation as ‘The adverse impact of repeated litigation may be seen as inimical to a child’s well-being and so contrary to their best interests: Freeman & Freeman (1987) FLC 91-857, 76,470.

 

The rule in Rice v Asplund involves the exercise of discretion and is subjective to each different circumstance.