Rice v Asplund: When Can Parenting Orders Be Changed in Australia?

Shahn Beasley-Reickenvater

Senior Associate Aitken PartnersView Profile

Can final parenting orders be changed in Australia? This article explains the Rice v Asplund threshold, the operation of section 65DAAA of the Family Law Act 1975, and the circumstances in which a court may agree to vary existing parenting arrangements.

Can Final Parenting Orders Be Changed?

A common question separated parents ask is whether parenting orders can be changed after they have become final.

Although it is possible to change final parenting orders, obtaining a variation is not straightforward. The Court places significant weight on stability for children and will generally only revisit existing orders where there has been a significant change in circumstances and doing so would be in the child's best interests.

Understanding the principles established in Rice v Asplund and the operation of section 65DAAA of the Family Law Act 1975 (Cth) is essential before commencing proceedings to vary parenting orders.

What are Final Parenting Orders?

Final parenting orders are the arrangements which the family court says are in the best interests of the child.

This includes the persons with whom the child shall live, spend time with, and communicate with, along with the allocation of parental responsibility, child maintenance, how to resolve disputes relating to the child, and any aspect of the care, welfare or development of the child or any other aspect of parental responsibility.

Once these decisions are made final, it becomes more difficult to convince the court to reconsider its decision. This applies even where the original orders were made by consent.

To achieve a family law variation, the court must be satisfied that it is in the child’s best interests that the orders be varied. To demonstrate this, it is necessary to point to a substantial change in circumstances since the final parenting orders were made.

This is the principle arising out of the case of Rice v Asplund (1979), which is now enshrined in section 65DAAA of the Family Law Act 1975.

Rice v Asplund and the Rule for Changing Parenting Orders

Facts of Rice v Asplund

• The original orders provided that the parties' young daughter live with her father.

• Approximately nine months later, the mother sought to vary the orders.

• The mother's circumstances had improved significantly.

Why the Court Allowed the Orders to Be Reconsidered

• The Court recognised that children require stability.

• It warned against repeated litigation whenever a parent's circumstances change.

• The Court held that it should not lightly reopen final parenting orders.

• Nevertheless, the mother was successful because the Court found that there had been a significant change in the mother’s circumstances, and that the original orders were no longer in the child’s best interests.

What Is the Rice v Asplund Threshold?

Before the Court will reconsider final parenting orders, there must be evidence of a significant change in circumstances of a sufficient degree to justify reopening the case. This has become known as the Rice v Asplund rule or Rice & Asplund threshold test.

What Counts as a "Significant Change in Circumstances"?

Examples include:

• Serious concerns about a child's safety or wellbeing that were not known at the time the original orders were made.

• Relocation proposals.

• Significant changes to a parent's capacity to care for a child.

• Persistent breaches of parenting orders.

• Arrangements that are no longer working in practice.

• Important evidence that was unavailable when orders were made.

When the Court Is Unlikely to Reopen Parenting Orders

• Minor disagreements.

• Changes that are temporary or insignificant.

• A parent simply believing that a different arrangement would be better.

• Issues that were already known to the parties at the time of the original orders.

Recent Legislative Changes: Section 65DAAA

On 6 May 2024, section 65DAAA of the Family Law Act 1975 (Cth) was introduced. This states that the Court must not reconsider final parenting orders unless:

1. The court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
2. The court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change in circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

Emerging Court Decisions on s65DAAA

Initially, there was uncertainty over whether there must actually be a significant change in circumstances, or whether it is sufficient for the court to have only ‘considered whether there has been a significant change in circumstances’.

The judgments in Rasheem & Rasheem [2024] and Whitehill & Talaska [2024] interpreted section 65DAAA to mean all that was required was for the court to consider whether the change exists, without necessarily convincing itself that such a change had occurred.

The most recent interpretation is found in the decision of Radecki & Radecki [2024], where the court concluded that section 65DAAA was inserted into the Family Law Act 1975 to bring the Rice v Asplund rule into legislation, and that it must be satisfied that a significant change in circumstances has occured before reopening final family law orders.

Should You Apply to Change Parenting Orders?

Key questions to ask before seeking a parenting order variation

• Has there been a genuine and substantial change since the orders were made?

• Is there evidence demonstrating the change?

• Can the issue be resolved through negotiation or mediation without going to court?

• Even if there has been a significant change in circumstances, does the proposed resolution genuinely promote the child's best interests?

A family lawyer can help assess whether the test at section 65DAAA is likely to be met before commencing court proceedings.

Need Advice About Changing Parenting Orders?

Final parenting orders provide important certainty for children. However, they are not unchangeable.

The landmark decision in Rice v Asplund established that the Court will only revisit parenting orders where there is a sufficiently significant change in circumstances, and where reconsideration is consistent with the child's best interests.

If you are considering changing parenting orders, obtaining early legal advice can make a significant difference. Contact Aitken Partners' experienced family law team to discuss your circumstances and receive practical, strategic advice tailored to you and your child's best interests.