Prior to the insertion of s65DAAA into the Family Law Act it was necessary to satisfy the Court that the Rule in Rice v Asplund applied if one wished to vary final parenting orders.  That is that there has been a significant change in circumstances since the making of the previous Orders.  Whilst that is still the test, it is set out as legislation which could be said to provide less ‘leeway’.

In Bello & Opeyemi [2025] FedCFamC1A 179, the Father sought to appeal final parenting Orders made in December 2021 in respect of a then five-year-old child.  The Orders provided for only supervised time between the child and the Father on four occasions each year.  Those earlier Orders included a notation that if the Father completed three set courses, then he would not be precluded from revisiting the Orders in the future.  That notation was, of course, not binding in any future proceedings and not indicative of success in respect of any future application to vary those Orders.

The Father filed an application in May 2024 seeking to remove the requirement for supervision on the basis of having completed the said courses however, he did not advance any evidence as to how that may have alleviated the previous concerns raised and/or ameliorated the risk to the child.  The primary Judge was not convinced and dismissed the Father’s application, along with an Order for costs

The Father thereafter filed an Application in an Appeal for leave and separate Appeals against the dismissal of his Application and the Order for costs.

Pursuant to the test set out in Radecki & Radecki (2024) FLC 94-232, the Father required leave to appeal.  That test requires a determination as to:

“…whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court and whether substantial injustice would result if leave were refused…”

On 29 September 2025, Her Honour, Christie J, found none of the grounds of appeal had been established and dismissed both the Application in an Appeal and the two Appeals themselves.  Her Honour further ordered that the Father pay the Mother’s costs in the sum of $31,885.