Is a significant change of circumstances enough any more to reopen final parenting orders?

Section 65DAAA brought about material changes to the application of the rule in Rice & Asplund, as I explained here a few months ago. In Radecki & Radecki [2024] FedCFamC1A 246, the Full Court sought to resolve the problems created by the new section, boldly asserting that because the Parliament intended to make no change to the law, therefore it didn’t.

The s.65DAAA quandary

However, it is now quite clear that the statute has brought about a substantial amendment to the law. This is so because even if one interprets s.65DAAA(1)(a) to say that a significant change of circumstances is a prerequisite to hearing a case in which changes are sought to final parenting orders, there is still the question of how to interpret and apply subsections (1)(b) and (2). The court must not reconsider the final parenting order unless:

the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of 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.

This in turn requires consideration of subsection (2):

(2)  For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:

(a)   the reasons for the final parenting order and the material on which it was based;

(b)   whether there is any material available that was not available to the court that made the final parenting order;

(c)   the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);

(d)   any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

A significant change of circumstances is necessary, but not sufficient

In a recent decision, Austin J, sitting as a single member of the Full Court, made it clear that a first instance judge is now entitled to dismiss an application for new parenting orders despite an initial finding, pursuant to s 65DAAA(1)(a), that there has been a significant change of circumstances. In Isakson & Isakson [2025] FedCFamC1A 65 at [36], he said:

Section 65DAAA(1)(a) of the Act is a necessary, but not dispositive, component of the test. Section 65DAAA(1)(b), given the way in which it is elaborated by s 65DAAA(2), enables a fresh parenting application to be dismissed if doing so would serve the best interests of the child, even if the applicant does first satisfy s 65DAAA(1)(a) by proving a significant change in circumstances since the last orders were made.

However, if the judicial officer's decision is based upon reliance on evidence adduced at the first trial, as contemplated by subsection (2)(a), then the judge must inform the parties that he or she may wish to rely upon that evidence. So if a trial judge takes into account a single expert report prepared for the purposes of the first hearing, he or she must first inform the parties of the intention to do so, in order that they can be heard on the matter (at [22]).

There can be little doubt that this is a proper interpretation of the statute, assuming that Radecki correctly determines the meaning of s.65DAAA(1)(a) as still requiring demonstration of a significant change of circumstances as a first step.

The question of how much of a change of circumstances there has been is now just the first stage of the analysis.

A best interests determination

Subsection (1)(b), as now interpreted after Radecki and Isakson, makes it clear that there is a ‘best interests’ interests decision to be made even after being satisfied that there is a significant change of circumstances.

So the s.60CC factors arise for consideration, which was not the case before, if the court decided to dismiss the application (Carriel & Lendrum (2015) 53 Fam LR 157; Trewitt & Brock [2021] FedCFamC1A 9).

Furthermore, subsection (2) requires the court to assess whether the court will make a significantly different parenting order if the case is allowed to proceed. It is hard to know how it can do that without at least some hearing as to the merits of the case for changing the Orders. The judicial officer must also assess the potential benefit, or detriment, to the child, of allowing the matter to proceed. There would need to be evidence of that, for example from a Court Child Expert or other expert witness.

A two-step process

What we have, in effect then, is a two step process. First, the court will need to determine whether, taking the applicant’s case at its highest, there has been a significant change of circumstances. If the threshold of s.65DAAA(1)(a) has successfully been crossed, then a second set of considerations comes into play. The Court must make a best interests determination which will involve consideration of various matters contained in s.60CC and in s.65DAAA(2).

This may create dilemmas for judicial decision-makers, seeking to deal with s.65DAAA as a threshold issue in an economical and time-efficient manner. Before dismissing the application of a parent seeking to reopen parenting orders when the s.65DAAA issue is contested, the judicial officer must give him or her procedural fairness and apply the terms of the statute faithfully. Where the judicial officer is persuaded that there has been a significant change of circumstances, there will need to be a further hearing of the evidence in the matter to consider the matters in subsection (1)(b) and (2). It is hard to see how the court can do so without at least giving the matter as much hearing time as is typically given to contested applications for interim parenting orders; and failure to apply the statute properly, giving each side procedural fairness, could lead to a successful appeal.

If there is a need to get evidence from a Court Child Expert on the balance between benefits and detriments in reopening the case, that could require an adjournment.

None of this was intended, of course; but sometimes well-meant reforms can lead to unexpected additional costs to litigants and to the court itself. This is another example.

Should you make consent orders?

A further question arises: is it wise to make Orders by consent in circumstances where your client may wish to renegotiate them as circumstances change in a few years' time? The issue arises particularly with young children. It is very difficult to make sensible court orders about a 14 month old child that can cover the next few years of the child's life, into school and beyond. That can lock parents into arrangements that aren't sensitive to the child's developing needs. If one parent's accommodation is temporary, it may well be that some adjustments will have to be made to contact arrangements following a move to another area. With clients who are not too acrimonious, it may be better to enter into a parenting plan.

Consent orders now carry substantial risks. And that is a significant change in the circumstances in which we practice. It is an issue to talk through with clients.

Authored by Patrick Parkinson AM

Emeritus Professor of Law, University of Queensland; Executive Director

Special Counsel, Watts McCray.