In a recent decision, the Federal Circuit and Family Court of Australia in Radecki & Radecki has reaffirmed the legal threshold required to apply to the court to vary parenting orders. This decision, released in December 2024, addresses some confusion raised by amendments to the Family Law Act that came into effect in May 2024.

Under the long-standing precedent, sometimes referred to as the rule in Rice v Asplund , to change existing parenting orders, it was necessary to demonstrate that there has been a significant change in circumstances occur since the original parenting orders were made. This threshold was essential to justify the reopening and altering of parenting arrangements, provided of course that it was in the best interests of the child or children to do so.

The recent amendments to the Family Law Act, specifically the introduction of Section 65DAAA, legislated this principle by requiring the court to consider whether there has been a significant change in circumstances when reviewing parenting orders. This wording led to some uncertainty: did the court merely need to consider the possibility of changed circumstances, or did it still need to find that such a change had indeed occurred before proceeding with any variation?

The Radecki decision has now clarified this ambiguity. The court confirmed that the threshold remains: a significant change in circumstances must be demonstrated before an application to vary parenting orders will be allowed. It is not enough for the court to simply consider whether such changes might have occurred; there must be a concrete finding that they actually have. Moreover, as always, any proposed changes must align with the best interests of the children.

For clients concerned about the implications of these legislative changes, the Radecki ruling offers reassurance that the court's approach remains consistent. The necessity to prove significant change ensures stability and predictability in family law proceedings, protecting children from unnecessary disruptions unless clearly warranted.

If you are considering applying for a variation in your parenting orders, it is crucial to understand that this significant change in circumstances must be well-documented and evident. Our experienced family law team is here to guide you through the complexities of these legal requirements and help ensure that your case is presented effectively, always with the best interests of your children at heart.