Revisiting parenting orders: the codification of Rice & Asplund

In our next article on the changes to the Family Law Act, we look at the codification of Rice & Asplund. Rice & Asplund has been a cornerstone case of the family law system since it was handed down in 1979. Rice & Asplund requires, to bring an application before the Court where parenting orders have already been made – whether by consent or contested hearing – you must demonstrate that there has been a change in circumstances to warrant the court reviewing the orders.

The Family Law Amendment Act 2023 codifies Rice & Asplund. This means, rather than refer to the principles from the case, the requirements are now clearly set out in the Act.

The new section 65DAAA sets out the requirements when a court is reconsidering a final parenting order. The section is clear that the court must not reconsider a final parenting order unless: -

 (a)      the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

 (b)      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.

The legislation provides some guidance on what the court can consider when determining whether to reconsider a final parenting order. The legislation provides that the court may have regard to: -

(a)        the reasons for the final parenting order and the material on which it was based;

(b)        whether there is any material available that was not available to the court that made the final parenting order;

(c)        the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);

(d)        any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

The new act allows the court to reconsider final parenting orders if the parties provide their consent.

Having a codified approach to these matters is likely to make the process easier for parties and the courts. For parties, it is now clear what the court will be considering when there is an application that would require the reconsideration of previously made parenting orders.

Please note: the information in this article is general in nature and is not legal advice. For legal advice about your circumstances, contact us to make an appointment with one of our solicitors.