The latest amendments to the Family Law Act that commenced on 6 May 2024 so a codification in Section 65DAAA of what was previously known as the Rule in Rice v Asplund.

Reconsideration of Parenting Orders prior to 6 May 2024

In the 45 years since the decision in Rice v Asplund  and the introduction of the 6 May 2024 amendments to the Family Law Act there have been many applications of that rule.

In Stern & Colli [2022] FedCFamC1A 95 the Full Court provided a summary of the principle as follows:

The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the [applicant] has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.

Did Section 65DAAA adapt Rice v Asplund in full?

The explanatory memorandum talks of s65DAAA codifying the common law rule established by Rice v Asplund and the need for a significant change of circumstances to reconsider final parenting orders.  In the second reading speech, again it was said that s65DAAA codifies existing case law about the reconsideration of parenting orders.

Whitehill & Talaska [2024] FedCFamC2F 768 (5 July 2024) was a decision of Judge O’Shannessy on Urgent Interim Hearing in respect of a three-year-old child.  There were prior Final Orders made on 11 April 2023 however, the matter came before the Court on 22 May 2024 on the Mother’s filing of an Initiating Application on 15 March 2024, less than 12 months after the previous final orders, seeking to amend those Orders.  Indeed, she sought to significantly change those Orders by restricting the time that the child would spend with the Father.  The Father seeks a dismissal of the Mother’s application on the basis of s65DAAA.  Whilst His Honour ordered a continuation of, and compliance with, the existing Orders pending the outcome of the s65DAAA proceedings, His Honour also ordered the appointment of a Single Expert to underake a psychiatric assessment of the Father.  This was an interesting approach given His Honour’s analysis of the new amendments and that the basis of the Mother’s application was the alleged deterioration of the Father’s mental health.

His Honour provided a very thorough examination of his understanding of the meaning of 65DAAA in that whilst it imposes a positive obligation upon the Court, emphasising that the starting point is that the Court “must not reconsider the final parenting order unless…”, on the face of it, the section does not require a change of circumstances.  His Honour then considered the explanatory memorandum and provided a further analysis of what he considered to be the intention of this particular amendment.

Ultimately, His Honour determined, inter alia:

32. I am satisfied that even on an urgent hearing, the discharge or even suspension of existing orders is a reconsideration of the final parenting order. I cannot make such orders unless the provisions of section 65DAAA are engaged even if the order is sought for only a short time or on an interim basis.

The takeaway 

Final orders are meant to be final and the Court should not entertain further contested parenting proceedings unless, in a consideration of all of the circumstances, it is in the child’s best interests to do so.