Changing Parenting Orders

My Parenting Orders need changing, is this possible without the other parents consent?

In order to change final parenting orders, the Court is first required to consider if there has been a material change in circumstances since the making of the final parenting order, and if it is in the child’s best interest to change the Orders.

The principles of Radecki and section 65DAAA of the Family Law Act 1975 (Cth) are central to the reconsideration of final parenting orders in Australia, particularly following the 2024 amendments. Here is a summary of the key points:

Section 65DAAA – Reconsideration of Final Parenting Orders

• Codification of Rice & Asplund: Section 65DAAA, inserted by the Family Law Amendment Act 2023 (Cth) and effective from 6 May 2024, codifies the long-standing rule from Rice & Asplund [1978] FamCA 84.

• Threshold for Reconsideration: The court must not reconsider a final parenting order unless:

• There has been a significant change in circumstances since the order was made; and

• It is in the best interests of the child for the order to be reconsidered.

• Relevant Factors: In determining whether to reconsider, the court may have regard to:

• The reasons for the original order and the material on which it was based;

• Whether new material is available that was not before the original court;

• The likelihood that a new order would significantly affect the operation of the existing order;

• Any potential benefit or detriment to the child from reconsideration.

• Consent: The court may also reconsider a final parenting order with the agreement or consent of all parties.

Radecki & Radecki [2024] FedCFamC1A 246 – Interpretation of Section 65DAAA

• Clarification of "Consider": The Full Court in Radecki clarified that under s 65DAAA, the court is not merely to "consider" whether there has been a significant change of circumstances, but must make a positive finding of such a change before proceeding.

• Two-Stage Process:

• First Stage: The court must make findings of fact as to what changes in circumstances (if any) have occurred since the making of the original parenting orders. If no significant change is found, the application ends there.

• Second Stage: If a significant change is found, the court must then determine, subject to the best interests of the child (as per s 60CC and s 65DAAA(2)), whether the final order should be reconsidered.

• No Substantive Departure: The Full Court found that the threshold under s 65DAAA is not materially different from the common law principles in Rice & Asplund; the legislative intention was to codify, not alter, the rule.

• The court will not entertain applications to vary final parenting orders unless there is clear evidence of a significant change in circumstances.

• The best interests of the child remain paramount, and the court will weigh the potential benefits and detriments of reopening litigation.

  
  

If you would like to discuss how the above applies to your case, please don’t hesitate to contact Gannon Family Law.