Reopening Final Parenting Orders: Insights from Radecki & Radecki

In the recent case of Radecki & Radecki [2024] FedCFamC1A 246, the court addressed the application of s 65DAAA of the Family Law Act 1975 (Cth). The court ultimately reaffirmed the long-standing rule in Rice & Asplund that final parenting orders should not be reopened unless there is a significant change in circumstances.

In this matter, final parenting orders were made in 2015 which provided that the child would live with the Mother and spend specified time with the Father.

In July 2023, the Father applied under s 65DAAA to have these orders revisited and the time with the child increased. The Mother sought for this application to be dismissed based on the principle in Rice & Asplund [1978] that final parenting orders should not be reopened unless there has been a significant change in circumstances.

In July 2024, the primary judge dismissed the Father’s application and concluded that there had been no significant change in circumstances. The Father appealed.

The question before the court was whether s 65DAAA simply requires the court to "consider" changes in circumstances or necessitates a finding of significant change before altering final parenting orders.

The court ruled that s 65DAAA ultimately codifies the rule of Rice & Asplund. What this means is, varying parenting orders requires the court to make a finding of significant change of circumstances instead of merely considering whether there has been a significant change. Keep in mind that the court’s overarching goal is ensuring the best interests of the child are satisfied when exercising its discretion to reconsider final parenting orders.

In this case, the court ruled that the primary judge should have found a significant change in circumstances. The appeal was allowed and the matter was remitted for rehearing.

In essence, there has been no significant change when it comes to how the court is to determine a significant change in circumstances for parenting orders.

If you would like to receive further information or advice, do not hesitate to contact our experienced Family Law Team.

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