Family law is a dynamic field, subject to periodic reforms aimed at refining processes and better serving the best interests of children involved in legal disputes. The recent changes to the Family Law Act 1975, enacted on October 19, 2023, have significant implications for the variation of final parenting orders. In this blog post, New South Lawyers’ Family Lawyers explore the codification of the Rice & Asplund principle under the new Section 65DAAA, shedding light on the intricacies of this legal development and its impact on final parenting orders. 

Rice & Asplund: A historical perspective

Under Section 65D (2) of the Family Law Act 1975, the Court has the power to make an order that discharges or varies an earlier parenting order. Despite this, the Full Court in Rice & Asplund [1978] FamCA 84 held that a court must not consider an application to change a previous parenting order unless the applicant can establish that there has been a significant change in circumstances, or that some material factor has now become available that was not disclosed to the Court initially, which merits “such a serious step”.

The rule in Rice & Asplund is established on the idea that incessant litigation over a child or children-related issues is generally not in the child or children’s best interests and that litigation may have adverse effect on the child or children who are the subject of such litigation.

The Codification: Section 65DAAA unveiled

The recent family law reforms approved on 19 October 2023, now incorporates the rule in Rice & Asplund in the Family Law Act 1975 by inserting a new Section 65DAAA which now provides that the Court cannot reconsider a parenting order unless: Firstly, a significant change of circumstances has been established; and secondly it is in the best interests of the child for the order to be reconsidered. Essentially, Section 65DAAA has not only codified the current test in Rice & Asplund but has also added a second limb to it.

Determining the Best Interests of a child

In considering the best interests of the child or children, the Court is required to have regard to:

Firstly, the reasons for the final parenting order and the evidence provided to the Court at the time of the determination.

Secondly, any new evidence available that was not adduced in court, at the time the final parenting order was made.

Thirdly, whether the Court will make an order that is significantly different from the final parenting order.

Finally, the possible benefit or detriment to the child of the Court reconsidering the final parenting order.

Should the Court find that it is not in the best interests of the child or children to reconsider and vary the final parenting order, the Court will not proceed with the variation application, regardless of whether the applicant party can establish a significant change in circumstances.

The codification of Rice and Asplund under the new Section 65DAAA  and the inclusion of the second arm is likely to increase the difficulty of commencing new proceedings than under the previous test in Rice & Asplund.

Should you be dissatisfied with the Final Parenting Orders made by the Court or wish to apply for reconsideration of the order for any reason.  You should seek assistance from an  experienced Family Law team that is on top of the recent changes to the legislation.

New South Lawyers’ communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.

To find out more, chat with a member of New South Lawyers' Family Law Team today.