Navigating parenting orders after a separation can be challenging, especially when circumstances change. For many families in New South Wales, the question arises: when can final parenting orders be revisited?

This article explains the impact of the May 2024 amendments to the Family Law Act 1975 (Cth), with a focus on section 65DAAA, and how it interacts with the well-known Rice v Asplund precedent. Whether you’re considering an application to vary existing parenting arrangements or seeking clarity on your legal position, understanding the latest developments is crucial.

Understanding Final Parenting Orders and Why They Matter

When the Court makes final parenting orders, it expects those orders to provide long-term stability for the child. These orders are not intended to be revisited lightly. This is based on the belief that repeated litigation can be detrimental to a child’s emotional well-being and sense of security.

However, life can change. A parent may move interstate, a child’s needs may evolve, or new risks may emerge. In such cases, the Court allows for the possibility of reviewing parenting orders, but only under strict conditions.

What Is the Rice v Asplund Rule?

The Rice v Asplund case established a threshold test that must be satisfied before the Court will even consider varying final parenting orders. This test is twofold:

  1. There must be a significant change in circumstances since the original orders were made
  2. It must be in the best interests of the child to reconsider the orders

Unless both criteria are met, the Court will not allow a new application to proceed.

This legal principle protects children from unnecessary disruption and ensures that only cases with genuine merit are brought before the Court.

What Constitutes a “Significant Change in Circumstances”?

There is no fixed checklist for what qualifies as a significant change. Some common examples include:

  • A parent developing a serious medical condition
  • Relocation proposals that affect existing parenting arrangements
  • The child’s needs, preferences, or well-being changing over time
  • Discovery of previously unknown risk factors

The Court will examine what the circumstances were at the time the original orders were made, what has changed since, and whether those changes are substantial enough to justify revisiting the case.

Section 65DAAA of the Family Law Act: Codifying Rice v Asplund

As of 6 May 2024, section 65DAAA was added to the Family Law Act 1975 (Cth) to formally codify the threshold test outlined in Rice v Asplund.

Section 65DAAA states that the Court must not reconsider a final parenting order unless:

  • The Court has considered whether there has been a significant change in circumstances; and
  • The Court is satisfied that, in all the circumstances, including whether there has been such a change, it is in the child’s best interests to do so.

Initially, this wording led to legal uncertainty. Some legal practitioners questioned whether the new legislation merely required the Court to consider the possibility of changed circumstances, or whether an actual change must still be proven.

Full Court Clarifies the Law in Radecki & Radecki (2024)

On 19 December 2024, the Full Court of the Federal Circuit and Family Court of Australia delivered its judgment in Radecki & Radecki, confirming how section 65DAAA should be interpreted.

The Court clarified that section 65DAAA does not lower the bar. It confirmed that:

  • The actual existence of a significant change in circumstances is still required; and
  • The test in Rice v Asplund remains fully intact, not watered down.

Justice Aldridge notably stated that if the new law did not require a real change in circumstances, “the whole section would be pointless” (Sciacchitano & Zhukov, [11]).

This ruling brought much-needed certainty for family law practitioners and clients across NSW and Australia.

Why This Matters for Parents in NSW

If you’re considering applying to vary final parenting orders in NSW, it is not enough to simply feel the arrangements no longer work. You must demonstrate that something significant has changed, and that reopening the matter would serve your child’s best interests.

The risks of proceeding without proper legal advice include:

  • Wasting time and money on an application that doesn’t meet the threshold
  • Facing a costs order if the application is dismissed
  • Further straining co-parenting relationships

When to Seek Legal Advice

You should seek legal advice if:

  • You believe your circumstances (or the child’s) have changed materially since the final orders were made
  • You’re unsure whether your proposed application meets the threshold
  • You have received a new parenting application and need help responding
  • You are navigating complex issues like relocation, parental alienation, or safety concerns

If you believe there has been a significant change in circumstances, or you’ve been served with an application to vary orders, contact Maatouks Law Group today to book your confidential consultation.

👉 Visit our Family Law page to learn more about our services and how we can assist.