Rice & Asplund: Where are we now?

In last year’s overhaul of the parenting provisions in the Family Law Act, Parliament attempted to codify Rice v Asplund. Almost 12 months later, the Court has been grappling with whether the legislation achieved this goal.

In this week’s article we look some cases that have deal with these provisions and how they are currently be interpreted.

What is Rice v Asplund?

Rice v Asplund was a parenting case that went on appeal, before the Full Court of the Family Court. The Full Court held that if a party wished to relitigate parenting orders, the applicant had to demonstrate there had been a change in circumstances to warrant the Court reconsidering the orders.

For more information on Rice v Asplund, you can read our case note here.

How was it codified?

In the 2024 changes section 65DAAA was introduced. Section 65DAAA set out the requirements for the court when reconsidering a parenting order.

This section provided that the Court must not reconsider a 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.

How have the courts interpreted the legislation?

Whitehill & Talaska [2025] FedCFamC2F 768

In July 2024 His Honour Judge O’Shannessy gave judgement in the case of Whitehill & Talaska. His Honour’s judgment provided a history of Rice & Asplund and a detailed review of the legislation, explanatory memorandum and the second reading speech.

In doing this His Honour came to the conclusion that, while the intention of section 65DAAA was to codify Rice & Asplund, it had not done so. Indeed, Parliament had changed the test and there was no longer a requirement that there had been a change in circumstances. His Honour stated at paragraph 17 of his judgement:

Rather the absolute requirement continues to be the best interests of the child/ren. Clearly, if after considering the issue it is determined that there has been a “significant change in circumstances”, the circumstances would more powerfully contend for the final orders to be “reconsidered”. But the absolute or mandatory requirement remains the Court’s consideration of the best interests of the children.

Rasheem & Rasheem [2024] FedCFamC1F 595

The decision in Rasheem was delivered in September 2024. In his judgement His Honour Justice Altobelli stated, “The new statutory test espoused by s 65DAAA operates in a substantively different manner to the rule in Rice and Asplund.” (at 53)

His Honour placed substantial weight on Parliament’s decision to include the term “consider” in the legislation. His Honour upheld the decision of Judge O’Shannessy and stated that while the court had to consider whether there had been a significant change in circumstances, a change in circumstances was no longer a prerequisite to “allow a reconsideration of a final parenting order under s 65DAAA of the Act”. (at 68)

Melounis & Melounis (No 4) [2024] FedCFamC1F 778

In another decision of His Honour Justice Altobelli, His Honour held that section 65DAAA deviated from the rule in Rice v Asplund. His Honour stated that, under the new legislation, it was no longer necessary to find a significant change in circumstances had occurred just that the court had to consider whether this had happened.

At 76 of his judgement, His Honour stated: -

For the purposes of s 65DAAA, the Court must simply consider whether circumstances have significantly changed since the final parenting orders were made, but an actual significant change of circumstances is not a pre-requisite to allow a s 65DAAA application. At a minimum, a change of statutory emphasis has occurred from the prior common law principle. 

His Honour also considered that a change to the legislation may – depending on the facts of the case - be itself a change in circumstances that enlivened a reconsideration of parenting orders.

Where are we now?

In December 2024 the matter of Redecki & Redecki went before the Appeal Court. Justices Austin, Carew and Williams addressed whether s65DAA did achieve its goal in codifying the rule in Rice v Asplund.

The Court unequivocally held that the section codified Rice v Asplund and to interpret that it did not was an error. Their Honours stated:

…there is no discernible difference between the first stage test or threshold to be applied under the new statutory regime, and the common law principles espoused by the rule in Rice and Asplund. (at 63)

…

The decisive factor in rejecting the literal interpretation of “consider” is because to do so results in an operation of s 65DAAA which, adopting the terminology of relevant authorities, is absurd, irrational, and capricious, contrary to Parliamentary intention and may result in unintended undesirable consequences, as observed above. In other words, s 65DAAA would not rectify the mischief, being unfettered applications to revisit parenting orders, to which it is directed. (at 78)

The Court also held that the change to the Family Law Act was not itself a change in circumstances that warranted the reconsidering of final parenting orders.

The Appeal judgement has clarified that the principles from Rice v Asplund have been codified by the legislation and a significant change in circumstances must have occurred before the Court will reconsider final parenting orders.