Radecki, section 65DAAA, and the codification of Rice & Asplund The common law rule established in Rice and Asplund regarding the reconsideration of final parenting orders is that the Court should not lightly entertain an application to alter final parenting orders. The Applicant must satisfy the Court that there has been a significant change in circumstances since the earlier order was made. This rule is intended to prevent exposing children to ongoing litigation, which is considered to not be in the best interests of the child. The Court must be satisfied that there has been a significant change in circumstances since the making of the final Orders (In the Marriage of Rice and Asplund (1978) 6 Fam LR 570). Section 65DAAA of the Family Law Act 1975 (Cth) has codified the common law rule established in Rice and Asplund regarding reconsideration of final parenting orders. Section 65DAAA provides for the following:
- 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.
Most recently, section 65DAAA has been considered on appeal in the case of Radecki & Radecki [2024] FedCFamC1A 246: Material facts The appellant and respondent had one child born in 2013. Final parenting orders were made on an undefended basis in December 2015 when the child was two years old. The orders provided for the child to live with the respondent and spend time with the appellant for a maximum of one night per fortnight. For several years, the child spent more time with the appellant than prescribed by the 2015 orders. In September 2022, the respondent ended this arrangement and reverted to strict compliance with the 2015 orders. The appellant filed an application in July 2023 seeking to increase his time with the child. Reasons for judgment The primary judge erred in failing to find there had been a significant change in circumstances since the 2015 orders were made, given the child’s age increase, the order’s contemplation of reconsideration, the previously agreed additional time spent, the breakdown of the parents’ cooperative relationship, and the circumstances in which the original order was made. Section 65DAAA was intended to codify the common law rule in Rice and Asplund, not to vary it. The use of “consider” in s 65DAAA(1) should be understood in the context of the Court being asked to accept the applicant’s evidence at its highest for the purposes of the application. The primary judge failed to properly apply s 65DAAA(1)(a) by not making a finding on whether there had been a significant change in circumstances based on all the evidence relied upon by the father taken at its highest. Decision
- Leave to appeal was granted.
- The appeal was allowed.
- Paragraph 1 of the order made on 27 June 2024 was set aside.
- The matter was remitted for rehearing of the application under s 65DAAA of the Act.
Key Takeaways Section 65DAAA of the Family Law Act 1975 (Cth) codified the common law rule established in Rice and Asplund regarding reconsideration of final parenting orders. The proper interpretation of “consider” in s 65DAAA(1)(a) requires the Court to contemplate the evidence and make findings of fact as to what changes in circumstances (if any) have occurred since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage requires the Court to make its determination subject to the overarching best interests principle.