There has long been a principle in family law that before someone can go back to court to seek a change to final orders, they need to demonstrate that there has been a significant change in circumstances since the final orders were made.
This principle is often referred to as the rule in Rice & Asplund, as that was the case that set down the rule way back in 1978.
The Family Law Amendment Act that came into effect in May, 2024 contains a section that was intended to codify the rule in Rice & Asplund, but there is doubt about whether it has achieved that purpose.
The new section of the Act that intended to codify Rice & Asplund is Section 65DAAA, which read as follows:
“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.”
There has been one reported case – Rasheem & Rasheem – since this new section came into force where the judge has spent considerable time analysing the meaning of this new section. His view was that the new Section 65DAAA had produced a change in the law. The Rice & Asplund rule was that a court could not reconsider the final parenting order unless there had been a significant change in circumstances, whereas that new Section 65DAAA only required the court to consider whether there had been a change, but did not require the court to find that there had been a change. Justice Altobelli adopted a dictionary definition for “consider”, so that all a judge has to do is “contemplate mentally, fix the mind upon, think over” whether there has been a change. He went on to make clear that the fundamental criteria that must be satisfied to allow a reconsideration of a final parenting order is that “the Court is satisfied that, in all the circumstances…it is in the best interests of the child for the final parenting order to be reconsidered.”
So, “whilst it is mandatory to consider whether there has been a significant change of circumstances, such a change of circumstances is not a prerequisite to allow a reconsideration of a final parenting order under s65DAAA of the” Family Law Act.
In Rasheem, final orders had been made on 18 August, 2023. They provided for the children to spend gradually increasing time with the father, over 4 stages. The mother ceased time at the start of the third stage, when the children were to start spending overnight time with the father, asserting that the children had had an adverse reaction to time with the father since the final orders. The mother then filed a fresh application, which proposed that the children spend much less time with the father. Justice Altobelli held that Section 65DAAA changed the test in Rice& Asplund, ruling that the court only had to consider whether there had been a significant change in circumstances since the final orders were made. He went on to hold that the balance of Section 65DAAA provided that in any fresh application, the paramount test was whether, in all the circumstances, the court considered that it was in the best interests of the children for the final parenting order to be reconsidered.
Justice Altobelli concluded that the provisions of s65DAAA conflict with, and alter, the rule in Rice and Asplund rather than codify it, notwithstanding that it appears to have been the intention of Parliament to achieve such codification of the rule.
The mother relied on a report from a psychologist who had seen the child and had recommended against overnight time. Justice Altobelli was quite critical of the psychologist, who had formed her view without ever meeting with or talking to the father and who did not know of the mother’s past history of anxiety.
Justice Altobelli attached very little weight to the psychologist’s views. Justice Altobelli attached weight to the father’s evidence that the children had enjoyed their time with the father. He also attached weight to the mother’s anxiety in interpreting her evidence that the children had become more distressed as their time with the father progressed.
Justice Altobelli dismissed the mother’s application on the basis that it was not in the children’s best interests for the orders of August, 2023 to be re-considered.
In other reported decisions where Section 65DAAA has been mentioned, such as Carlyon & Graham [2024] FedCFamC1F 443, the judges appear to have proceeded on the basis that the section reproduced the Rice & Asplund rule, but they have not done the analysis of the precise wording of the new section as Justice Altobelli did in Rasheem.
If the judge in Rasheem correctly interpreted the new section, this will potentially open the door for many more cases where there are final orders in place and one of the parties applies to change those final orders. As a matter of policy, the courts will not want to encourage that approach, because it is well settled that it is not in the children’s best interests to be the subject of ongoing court cases between their parents.
It will take an appeal to the Full Court of the Family Court to settle the meaning of Section 65DAAA. In the meantime, the position is not settled and under Rasheem, the doorway is open for fresh applications to be made soon after the court has made a set of final orders.
Written by
Stephen Rugendyke
Special Counsel
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