When Can Final Parenting Orders Be Changed? Understanding the Court’s Inconsistent Approach
August 6, 2025
In May 2024, significant amendments to Australia’s Family Law system came into effect, introducing section 65DAAA into the Family Law Act 1975. This new provision was intended to clarify the rules around when final parenting orders can be reconsidered. However, recent court decisions have revealed inconsistencies in how this section is being interpreted and applied, leaving many parents confused about their rights and options.
Final parenting orders are meant to provide stability for children and families by setting out clear arrangements for parenting responsibilities. However, life is unpredictable, and circumstances can change. Section 65DAAA was introduced to codify the long-standing legal principle known as the “rule in Rice & Asplund,” which requires a significant change in circumstances before final parenting orders can be revisited. But what constitutes a “significant change,” and how strictly this rule is applied, has become a contentious issue.
The Case of Rasheem & Rasheem
One of the first cases to consider the new section 65DAAA was Rasheem & Rasheem.
The case involved two young children, aged six and four, whose parents had separated in 2020. Final parenting orders were made in August 2023 after a lengthy hearing. These orders granted the mother sole parental responsibility and provided for the children to live with her while spending gradually increasing time with their father, including overnight stays. However, the mother later sought to have these orders reconsidered under the new section. She argued that the children’s wellbeing had deteriorated since spending more time with their father, and claimed that the children were showing signs of distress and anxiety, which she attributed to their time in his care.
The mother’s application was supported by a letter from the children’s treating psychologist, who recommended that overnight visits with the father cease due to the children’s alleged anxiety. The mother also pointed to escalating conflict between herself and the father, as well as between their extended families, as further justification for her application. She argued that these developments constituted a significant change in circumstances since the final orders were made and that it was in the children’s best interests for the orders to be reconsidered.
The father opposed the application, denying the mother’s allegations and asserting that his time with the children had been positive and loving. He argued that the mother’s own anxiety was influencing her perception of events and that she was attempting to frustrate the operation of the final orders. The father also sought to have the children’s psychologist restrained from providing further therapy, claiming that her involvement was biased and exacerbating conflict between the parents.
Do You Need to Prove a Significant Change in Circumstances?
The Court in Rasheem took a broad view of section 65DAAA, interpreting it to mean that a court only needs to “consider” whether there has been a significant change in circumstances, rather than requiring a definitive finding of such a change. This interpretation suggested a more flexible approach, allowing courts to focus on whether it is in the best interests of the child to reconsider the orders, even if no substantial change in circumstances is proven.
As it turned out, the court found that there had not been a significant change in circumstances since the final orders were made. The evidence provided by the mother, including the psychologist’s letter, was deemed insufficient to support her claims. The court noted that the psychologist’s recommendations were based on flawed methodology, as she had relied solely on information provided by the mother and had not considered alternative explanations for the children’s behaviour. The court also found that the mother’s own anxiety likely influenced her perception of events and that there was no independent evidence to corroborate her claims about the children’s distress.
The court dismissed the mother’s application and upheld the final orders, allowing the father’s time with the children to continue as previously determined.
Nevertheless, this decision seemed to lower the threshold for revisiting parenting orders, and raised concerns about opening the floodgates to continuous litigation, which could undermine the stability that final parenting orders are meant to provide.
The Full Court’s Decision in Radecki & Radecki
Just months later, the Full Court of the Federal Circuit and Family Court of Australia took a different approach in the case of Radecki & Radecki. This case involved a father seeking to vary final parenting orders made in 2015, arguing that the breakdown of a cooperative parenting relationship and the passage of time constituted significant changes in circumstances.
The Full Court rejected the interpretation of section 65DAAA adopted in Rasheem. It held that the provision does not merely require courts to “consider” whether there has been a significant change in circumstances but mandates a positive finding of such a change before final parenting orders can be reconsidered. The Court emphasised that section 65DAAA was intended to codify, not alter, the rule in Rice & Asplund. This means that unless a significant change in circumstances is proven, the court cannot proceed to assess whether it is in the child’s best interests to revisit the orders.
The Full Court’s decision restored a stricter threshold for changing final parenting orders, aligning with the traditional approach under Rice & Asplund.
What Does This Mean for Parents?
The conflicting decisions in Rasheem and Radecki highlight the challenges parents face when seeking to change final parenting orders. On one hand, section 65DAAA aims to protect children from the instability of ongoing litigation – in Rasheem the court emphasised that continuous litigation over parenting arrangements is generally not in a child’s best interests. On the other hand, it recognises that changes in circumstances may necessitate a fresh look at parenting arrangements.
For parents considering an application to change final parenting orders, these cases underscore the importance of providing clear and compelling evidence of a significant change in circumstances. Without such evidence, courts are unlikely to entertain an application, regardless of whether it may be in the child’s best interests.
The inconsistency in how section 65DAAA has been applied also highlights the need for careful legal advice. Understanding how recent decisions may impact your case is crucial to navigating this complex area of law.
Finding Help with Parenting Issues
These cases highlight the complexities of seeking changes to parenting orders under the new legal framework. Parents considering such applications must be prepared to provide compelling evidence that any proposed changes are necessary and beneficial for their children. They also underscores the importance of ensuring that any expert evidence relied upon is impartial, well-founded, and thoroughly tested.
For parents navigating disputes over parenting arrangements, it is also a reminder of the importance of obtaining clear legal advice. Whether you are seeking to enforce existing orders or apply for changes, understanding how the law applies to your specific circumstances is crucial. An experienced Family Lawyer at Websters Lawyers can guide you through this process, helping you present your case effectively and ensuring that your children’s best interests remain at the forefront of any decisions made by the Court.