Following the amendments to the Family Law Act on 6 May 2024, the legislature has sought to codify the principles arising from the case of Rice & Asplund. Previously a threshold needing to be met by parties to prove a significant change in circumstances to alter final orders, the introduction of Section 65DAAA has changed the threshold to a consideration as discussed by the recent cases of Whitehill & Talaska [2024] FedCFamC2F 768 and Rasheem & Rasheem [2024] FedCFamC1F 595.
Rice & Asplund threshold
The rule in Rice & Asplund was a body of case law providing that once final parenting orders were made, further litigation regarding parenting orders would not be heard unless there had been a sufficient change in circumstances that warranted reopening litigation.
The rationale for this rule being that repeated and prolonged litigation about children was not usually in the best interests of the child/ren involved.
The Court hearings to assess whether further litigation would be permitted were threshold hearings, where the Judge’s task was a two-staged process. First, to make findings of fact in respect of the changes to the circumstances since the final orders. Second, to assess if the change in circumstance is sufficient to rehear the parenting issues in the children’s best interests.
Section 65DAAA
As of 6 May 2024, the Rice & Asplund principle has been codified under Section 65DAAA with the two-stage process being outlined in subsection (1):
- If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
- the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
- 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.
Whilst the explanatory memorandum and the second reading speech addressing the insertion of Section 65DAAA into the Act purport the section codifies the rule from Rice & Asplund, the text as written is what requires interpretation. The text of the section reads such that a change in circumstance is no longer required to have occurred, only that the Court must consider whether there has been a change in circumstance.
The mandatory requirement remains whether a reconsideration of the final parenting orders is in the child’s best interests pursuant to, and without limiting, section 60CC.
Whitehill & Talaska
The question of whether the case law and practice attached or consequent to the rule in Rice & Asplund remains in effect has been addressed in the recent decision of Whitehill & Talaska.
The case addressed that the new amendments to the legislation does not replicate or expressly provide for the constitutive body of case law which has expanded and provided guidance to the operation of the Rice & Asplund rule. Accordingly, and relying on the explanatory memorandum, the Court discussed that the legislation does not propose to unwind the case law which made the previous rule operative and flexible to factual circumstance.
The Court further addressed the operation for a Section 65DAAA hearing of the considerations imposed by the new sections, noting that whilst the law requires the acceptance of the applicant’s evidence of controversial events unless contradicted by incontrovertible evidence, it does not require the acceptance of the applicant’s opinion or inferences of controversial events.
The Court considered that regardless of whether a significant change in circumstance had occurred, it was proper for the considerations contained within s.65DAAA(2)(a)-(d) and s.60CC to be addressed.
The Court additionally considered whether the case of Goode & Good (2006) FLC 93-286 continued to apply following the 6 May 2024 amendments, noting this case applies the principles of Rice & Asplund to determinations at interim hearings. Goode & Goode applies to decisions made at interim hearings where the ability to test evidence is limited and stability provided by interim parenting arrangements may not be found to be in the child’s best interests following a consideration of s.60CC factors. The Court ultimately found, that with minor amendments, the Goode & Goode would remain operative caselaw following Section 65DAAA.
Judge O’Shannessy’s reasoning and discussion of the new s.65DAAA was confirmed and accepted by the Court in the case of Rasheem & Rasheem [2024] FedCFamC1F 595, per the reasons of Justice Altobelli. The case of Whitehill & Talaska has provided crucial judicial commentary to the operation of the amendment introduced in May 2024.
Talk to our team
Altering final parenting orders is a challenging process and requires consideration of what is best for the children involved. If you believe that there has been a significant change in circumstances which require your parenting orders to be revisited, talk to our team at Dorter Family Lawyers and Mediators.
Our family lawyers in Sydney can guide you through all family law matters, including any parenting matters you may be involved in. Enquire here or call us on 02 9929 8840.