Final orders are intended by the Court to enable parties to draw a line under their dispute and move forward with certainty by arranging their affairs in accordance with what the Court has adjudicated.
In family law, certainty can be achieved in property disputes between former spouses due to the finite character of money. In children’s matters, certainty is less achievable, particularly if orders are made when children are very young.
Court ordered arrangements made for 3- or 4-year-olds who have not yet commenced school are often no longer appropriate or desirable when those same children are entering high school. While cohesive families or cooperative co-parents may collaboratively navigate the changing circumstances and needs of their children as they grow and mature, for parents who have fought contentious Court battles to achieve final Family Court orders, it is far less likely that any flexibility will exist.
Amongst the substantial amendments that came into effect in May 2024, the framework for revisiting final orders was set out in the new section 65DAAA of the Family Law Act 1975 (“the Act”). This means that, for final parenting orders to be reconsidered, the Court must firstly consider whether a significant change of circumstances has occurred since the orders were made, and secondly, be satisfied that, in all the circumstances, it is in best interests of the child for the final parenting orders to be reconsidered.
Prior to this amendment to the Act, the long-standing position in relation to changing final orders, as set out in the leading case of Rice v Asplund, was that Court had to find that a significant change of circumstances had actually occurred before it could revisit final orders. The actual change of circumstances also had to be of a sufficiently serious nature. While final orders could always be reconsidered in matters where new evidence had come to light that had not previously been put before the Court, the Court took a very firm position that weighty changes in circumstances were required for reconsideration of final orders to be warranted.
However, the Act now states that the Court is only required to consider whether a significant change of circumstances has occurred, rather than whether one has actually occurred, and does not require that any such change be of a serious nature, but rather just a significant one. In the recent case of Rasheem & Rasheem, this distinction was highlighted by the Court as it is a change to the previous case law position. It broadens the discretion available to the Court to entertain applications for changes to final orders, and after the Court has considered whether a significant change has occurred, it makes reopening the orders contingent only upon what the Court considers is in the best interests of the children.
Recognising that the Court now has more discretion to reconsider final parenting orders, it is unlikely that a parent would decide to make such an application lightly. Final parenting orders, particularly in strongly contested matters, are often the result of a long litigious journey for families, in which the children themselves are increasingly involved as they mature. Court proceedings between their parents can be very disruptive and detrimental to children. Therefore, if a parent feels that they need to make changes to their final parenting orders because of a change in circumstances, or if the final orders have otherwise become unworkable as a result of extraneous factors, it is recommended that they seek legal advice to ensure that the application to be made will be in the best interests of the children.
Reopening children’s matters before the Court when a significant period has expired since the matter had last been litigated will also necessitate the parties to attend mediation with a Family Dispute Resolution practitioner prior to any application being filed.
Lynn & Brown Lawyers encourage anyone with questions about parenting orders or any other aspect of family law to get in touch with one of our experienced family lawyers. You can contact us through our website www.lynnandbrown.com.au or by calling 08 9375 3411.
About the Authors: This article has been authored by Alison and Jacqui. Alison is a career-change lawyer who undertook her legal studies as a mature age student. She completed her Bachelor of Laws with Edith Cowan University in November 2022, her Graduate Diploma in Legal Practice with the College of Law in May 2023, and was admitted as a Lawyer in the Supreme Court of Western Australia in August 2023. Jacqui has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.
