The Federal Circuit and Family Court of Australia has, through the appeal of Lehtinen & Lehtinen [2025] FedCFamC1A 69 has reinforced that Radecki & Radecki FedCFam1A 246 is good law regarding section 65DAAA of the Family Law Act 1975 (Cth) and the principles found in the seminal case of Rice and Asplund (1979).

The historic approach

Prior to May 2024, the principles arising from the case of Rice and Asplund were commonly referred to when determining a reconsideration of final parenting orders.

These principles ensured regard was had as to:

1. Whether there had been a substantial and significant/sufficient change in circumstances since the making of the final parenting orders, and
2. If the final parenting orders remained in the child’s best interests (including considering the consequences of exposing a child to multiple Court proceedings).

The new law in May 2024

Changes to the Family Law Act 1975 (Cth) in May 2024, introduced a new section: s65DAAA which specifically addresses the reconsideration of final parenting orders.

This change provides that the Court must not reconsider final parenting orders unless:

1. The Court has considered whether there had been a significant change in circumstances since the final parenting orders were made, and
2. That the Court is satisfied that, in all circumstances, it is in the best interest of the child for the final parenting orders to be reconsidered.

The section then identifies the factors for the Court to consider when determining whether to reconsider final parenting orders. They include:

1. The best interests of the child
2. The reasons for the final parenting orders and the material on which they were based
3. Whether there is material available at the time of the reconsideration which was unavailable when the final parenting orders were made
4. The likelihood of the Court making new parenting orders that affect the operation of the final parenting orders in a significant way, and/or
5. Any potential benefit, or detriment, to the child that might result from reconsidering the final parenting orders.

The amendments were considered throughout 2024 in three matters before the Court: Whitehill & Talaska [2024] FedCFamC2F 768, Farnworth & Farnworth [2024] FedCFamC2F 1094, and Rasheem & Rasheem [2024] FEdCFamC1F.

All three of these matters identified that whilst the introduction of section 65DAAA was intended to codify the Rice and Asplund rule, the section operated in a substantially different way to the rule. These decisions ruled that the effect of the legislation is that the Court only needs to “consider” whether a significant change in circumstances has occurred, deviating from the mandate that Rice and Asplund placed on this finding.

This meant that whilst it is mandatory for the Court to consider whether there had been a sufficient or significant change in circumstances, a change in circumstances was not seen as a prerequisite to allow a reconsideration of final parenting orders. Instead, the other factors could inform whether any reconsideration can occur, even if the change in circumstances had not occurred.

Radecki & Radecki

On 19 December 2024, the Full Court of the Federal Circuit and Family Court of Australia (Division 1) delivered its judgment in Radecki & Radecki. This was a landmark decision that gave guidance on the interpretation and application of the amendments relating to the reconsideration of final parenting orders.

Radecki clarified how courts should interpret section 65DAAA and reaffirmed the principles from Rice and Asplund. The Court rejecting a literal interpretation of the word “consider”, stating that it conflicts with the statute’s purpose. Instead, the Court held that judges must evaluate the evidence and make findings of fact as to what changes in circumstances, if any, there have been since the making of the parenting orders.

If no change is found, then the matter ends. However, if a positive finding of change in circumstances is made, the Court must then assess the best interests of the child using section 60CC factors and criteria found in section 65DAAA(2).

Lehtinen & Lehtinen

The April 2025 appeal of Lehtinen & Lehtinen reinforces that a Rice and Asplund determination cannot be appealed, and that Radecki & Radecki is good law.

The respondent in this matter argued that Radecki ought not to be followed due to a perceived softening in the approach, submitting that section 65DAAA does not require changed circumstances and merely calls for a consideration of whether circumstances have changed or not.

His Honour rejected this view, stating that section 65DAAA incorporates the Rice and Asplund principle into legislation. This means the Court must:

• contemplate the evidence, and
• make a factual finding on whether a change in circumstances has occurred before reconsidering final parenting orders.

In summary, while early decisions of the Court after the introduction of s65DAAA suggested that the Rice and Asplund test no longer applies, the more recent and superior decisions from Division 1 of the Court indicate that the test, now enshrined in s65DAAA still requires a significant change of circumstances to be proven in order for the Court to reconsider final parenting orders.

Approaches to a reconsideration of final parenting orders require specialist assistance. If you are looking to vary final parenting orders, please contact Dobson Mitchell Allport for advice.