Written by Dakota Hallett
Final parenting orders are intended to provide children and families with stability, certainty and a clear framework for future parenting arrangements. However, circumstances can change after orders are made and, in appropriate cases, existing parenting arrangements may need to be reconsidered.
Section 65DAAA of the Family Law Act 1975 (Cth) provides the statutory framework for reconsidering final parenting orders and reflects the principles previously applied by the Court in Rice v Asplund (1979) FLC 90-725.
The provision balances two competing considerations: allowing parenting arrangements to be reconsidered where circumstances have genuinely changed, while protecting children and families from the uncertainty, cost and disruption associated with repeated litigation.
The threshold requirement: a significant change in circumstances
A party seeking to revisit final parenting orders must first satisfy the Court that there has been a “significant change in circumstances” since the orders were made.
This is a preliminary threshold. The Court does not immediately reconsider what parenting arrangements would now be in the children’s best interests. Rather, it must first determine whether there has been a sufficient change to justify reopening a matter which has already been determined.
Not every change will satisfy the threshold. Parenting arrangements naturally evolve, and difficulties implementing orders, disagreements between parents or dissatisfaction with existing arrangements will not necessarily amount to a significant change.
Relevant considerations may include:
- the nature and extent of the alleged change;
- whether the circumstances were known or reasonably contemplated when the final orders were made;
- whether the change is sufficiently significant to justify disturbing the finality of the existing orders;
- whether the existing orders remain capable of practical operation; and
- the potential impact of further litigation on the children.
A significant change may arise where there are substantial developments affecting a child’s safety or wellbeing, a material change in a parent’s circumstances or capacity to care for a child, or other significant events which were not reasonably anticipated when the final orders were made.
Section 65DAAA is not, however, an opportunity to simply relitigate issues already considered and determined.
A recent example
A recent matter in which Richardson Murray acted provides a useful illustration of how the threshold operates.
In that matter, final parenting orders were made by consent following more than two years of litigation. The children were to live with the mother and progressively increase their time with the father, ultimately reaching five nights per fortnight.
Approximately 11 months later, the mother commenced further proceedings seeking to reopen the parenting arrangements. She relied upon concerns regarding the children’s emotional presentation, difficulties with changeovers and school attendance, and allegations concerning the father’s conduct towards one of the children.
The father opposed the application. He submitted that the matters relied upon were substantially connected to concerns which had existed during the earlier proceedings, and did not establish that the final parenting orders had become unsuitable or incapable of operation.
The Court accepted that the mother’s concerns were genuinely held. It did not, however, need to make final findings about the contested allegations, or determine the cause of the child’s presentation, in order to decide the threshold issue.
The Court ultimately found that the threshold had not been satisfied. Importantly, it found that the asserted change was principally one of “degree, frequency and practical consequence”, rather than the emergence of an entirely new difficulty.
That distinction is significant. Circumstances may become more difficult or more frequent after final orders are made without necessarily constituting the type of significant change required to reopen the proceedings.
Difficulties implementing orders
The case also demonstrates the distinction between difficulties implementing parenting orders and circumstances in which the orders themselves have become unsuitable.
The Court considered evidence concerning unsuccessful changeovers, school attendance and parental communication. While these matters demonstrated difficulties, the Court was not satisfied that they established that the existing parenting orders had become materially unsuitable, unworkable or incapable of operation.
The fact that an order is difficult to implement does not necessarily mean that it should be discharged or replaced. The Court may instead consider whether the difficulties can be addressed through mechanisms and supports contemplated by the existing orders.
What was known when the final orders were made?
A further consideration is whether the circumstances relied upon as a “change” were already present, or reasonably contemplated, when the final orders were made.
In the recent matter, the Court considered evidence from the earlier proceedings concerning the child’s vulnerability, difficulties with transitions and the high level of parental conflict. The Court found that the difficulties relied upon in the subsequent proceedings were substantially connected to that existing context.
Finality and the consequences of further litigation
Section 65DAAA serves an important protective function. Final parenting orders provide children and parents with certainty, while repeated litigation can itself create instability, conflict and expense.
Accordingly, the question is not simply whether something has changed. The Court must consider whether the change is sufficiently significant to justify reopening the matter.
Key takeaway
A party seeking to reopen final parenting orders must demonstrate more than a change in circumstances or dissatisfaction with existing arrangements. The question is whether circumstances have changed sufficiently to justify revisiting a matter that has already been determined.
The Court may determine that the threshold under section 65DAAA has not been satisfied where:
- the issues relied upon substantially continue matters previously considered;
- practical difficulties do not demonstrate that the existing orders have become unsuitable or incapable of operation; or
- available mechanisms for addressing those difficulties have not been substantially attempted.
Section 65DAAA therefore strikes an important balance between allowing parenting arrangements to be reconsidered where circumstances genuinely warrant it, and preserving the stability and finality that children and families need.
How we can help
At Richardson Murray, our family law team regularly advises clients in relation to the making, enforcement, variation and potential reopening of final parenting orders. If you require advice about whether your circumstances may justify an application under section 65DAAA of the Family Law Act 1975, please contact our office.
This article is general information only and does not constitute legal advice.