Final parenting orders made by consent or by a court are intended to remain binding and enforceable until a child turns 18. Stability in parenting arrangements is generally preferred, as frequent litigation is costly—both financially and emotionally—and can strain co-parenting relationships. For children, consistent arrangements promote security and reduce uncertainty.

The Principles of Rice v Asplund

The case of Rice v Asplund (1979) FLC 90-725 established that repeated applications to vary parenting orders do not serve the child’s best interests. A final parenting order should only be reconsidered if there has been a significant change in circumstances.

In Rice v Asplund, the court cautioned against allowing frequent applications for review, stating:

“The principles which should apply in such cases are that the Court should have regard to any earlier order and to the reasons for the material on which that order was based.  It should not lightly entertain an Application to reverse an earlier custody order.  To do so would be to invite endless litigation, for change is an ever present factor in human affairs.” 

“… the Court would need to be satisfied by the Applicant, that there is some changed circumstance which would justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.  These are not necessarily matters for a preliminary submission, but they are matters that the Judge should consider in his Reasons for Decision.  It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served.  These principles apply whether the original order is made by consent or after a contested hearing.  The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.” 

This ruling placed a barrier in the way of repeated applications to vary parenting orders. The court must be satisfied that:

  • A new factor has arisen that would justify reconsidering the parenting order.
  • A material issue that was not disclosed in the original hearing has now come to light.

These principles apply whether the original order was made by consent or after a contested hearing. What constitutes a “significant change” will vary depending on the facts of each case.

Codification of Rice v Asplund in Section 65DAAA

The Family Law Amendment Act 2023 formally codified Rice v Asplund through section 65DAAA of the Family Law Act 1975 (Cth).

The Act now introduces a clear threshold test, meaning the court must not reconsider a final parenting order unless:

  • There has been a significant change in circumstances since the order was made, and
  • It is in the best interests of the child to reconsider the order.

When determining whether to revisit a final parenting order, the court may examine:

  • The reasons for the original order and the evidence available at the time.
  • Any new evidence that was not available when the order was made.
  • Whether reconsidering the order would likely result in a substantially different outcome.
  • The potential benefit or detriment to the child if the order is reconsidered.

The codification of these principles is expected to reduce unnecessary litigation and provide families with greater certainty.

Seeking a Change to a Parenting Order? 

If you are considering applying to vary a final parenting order or seeking to oppose a variation of the order, legal advice is essential to determine whether the circumstances meet the threshold test. At Tosh Colls Family Law, we can provide tailored guidance to help you understand your options and prepare your case.