Varying Parenting Orders Under Section 65DAAA: What Parents Need to Know

In summary:

• Final parenting orders can only be varied if there has been a significant change of circumstances and the court is satisfied reconsidering the orders is in the child's best interests.

• Since 6 May 2024, this two-stage test has been codified under section 65DAAA of the Family Law Act 1975 (Cth), replacing the previous case law approach under Rice v Asplund.

• Where all parties agree to vary the orders, the significant change of circumstances threshold does not apply, and a court can reconsider the arrangements by consent.

For parents who need to revisit final parenting orders, understanding the legal framework is essential. Since 6 May 2024, that framework has been governed by section 65DAAA of the Family Law Act 1975 (Cth), which codifies and extends the long-standing principle from the case of Rice v Asplund (1979).

What does section 65DAAA require?

Section 65DAAA establishes that a court must not reconsider a final parenting order unless two conditions are satisfied. First, the court must have considered whether there has been a significant change of circumstances since the final parenting order was made. Second, the court must be satisfied that, taking all the circumstances into account (including whether there has been a significant change of circumstances), it is in the best interests of the child for the final parenting order to be reconsidered.

This is a deliberately high threshold. The rationale is straightforward: repeated litigation over parenting arrangements is rarely in a child's best interests. Continuous court proceedings create instability, expense, and conflict at a time when children need consistency and predictability.

The two-stage test in practice

Before section 65DAAA came into force, the courts applied the Rice v Asplund principle through case law alone. The Family Law Amendment Act 2023 puts that principle on a statutory footing and adds an important second limb.

Under the current test, a parent seeking to vary final parenting orders must clear two hurdles. The first is establishing that something significant has changed since the orders were made. Significant changes in circumstances can include a parent relocating, a material change in the child's health or schooling needs, a parent's work arrangements changing in ways that affect the existing schedule, or concerns about the child's safety in the current arrangements. Minor disagreements or inconveniences are not enough.

The second hurdle is demonstrating that it is in the child's best interests for the orders to be reconsidered at all. Critically, even where a significant change in circumstances is established, the court will not reopen the orders if doing so is not in the child's best interests. This two-stage test means that the threshold for varying final orders is meaningfully higher than it was before the amendments commenced.

What does the court consider when assessing reconsidering orders?

In assessing whether the best interests of the child are served by reconsidering the orders, section 65DAAA allows the court to have regard to any relevant matters, including:

the reasons the original final parenting order was made and the evidence on which it was based; whether there is any new evidence available that was not available to the court when the original order was made; the likelihood that, if the orders are reconsidered, the court will make new orders in significantly different terms; and any potential benefit or detriment to the child arising from reconsidering the orders.

The child's best interests remain the paramount consideration throughout, consistent with the broader framework under section 60CC of the Family Law Act 1975.

When consent removes the threshold

Section 65DAAA(3) does not apply where all parties to the final parenting order agree to vary the arrangements. Where parents agree, a court can reconsider and vary the orders without the significant change of circumstances test being applied. This gives parents flexibility to update arrangements cooperatively without having to meet the higher threshold that applies to contested applications.

Where parents reach agreement, formalising the new arrangement through consent orders filed with the Federal Circuit and Family Court of Australia is strongly advisable. A parenting plan can record an agreed arrangement but is generally less enforceable than orders made by the court. However, a parenting plan does not vary the existing court orders in the same way as new consent orders. If the parties rely only on a parenting plan, the original final parenting orders may technically remain in force unless and until they are varied by further court orders. A later parenting plan may still be relevant evidence if a party seeks to vary the final parenting orders, particularly where it shows that the parents agreed to and followed a different arrangement after the orders were made.

Do pre-action requirements still apply?

A parent seeking to vary final parenting orders through the court must still comply with the pre-action requirements that apply to parenting matters generally. In most cases, this means attempting family dispute resolution and obtaining a section 60I certificate before filing an application, unless an exemption applies. Exemptions include situations involving family violence, risk of child abuse, and certain urgent circumstances.

Given the additional evidentiary requirements under section 65DAAA, early legal advice is particularly important. An application that cannot demonstrate significant change, or that fails to put the child's best interests at the centre of the case, risks being dismissed and may also expose the applicant to a costs order.

Practical steps for parents

If circumstances have changed and existing parenting orders no longer reflect the best arrangements for your child, there are practical steps worth taking before approaching the court.

Start by documenting the changes that have occurred since the orders were made. Consider whether those changes are genuinely significant or whether they represent the kind of ordinary variation that parenting orders are expected to accommodate over time. Attempt to discuss the proposed changes with the other parent and explore whether agreement is possible. If direct communication is difficult, family dispute resolution with an accredited mediator can help parties reach a workable outcome without litigation.

Where agreement cannot be reached, seek legal advice about whether the circumstances are likely to meet the section 65DAAA threshold before filing. A realistic assessment of the evidence available, and the likely outcome, will help avoid unnecessary proceedings and their associated costs.

Getting advice

Varying final parenting orders requires careful preparation and a clear understanding of what the court will and will not consider. The framework under section 65DAAA reflects a deliberate legislative choice to prioritise stability for children while preserving a genuine pathway for parents where circumstances have genuinely changed.

If you are considering an application to vary parenting orders, or if another parent has approached you about changing existing arrangements, the team at Espino Law can advise you on your options and help you navigate the process.

FAQs

Can I vary parenting orders if my ex and I both agree?

Yes. Under section 65DAAA(3), the significant change of circumstances threshold does not apply where all parties consent to the orders being reconsidered. If both parents agree to new arrangements, the court can vary the orders without either party needing to establish that circumstances have significantly changed. It is still advisable to formalise the agreed changes through consent orders rather than a parenting plan, to ensure the arrangement is enforceable.

What counts as a significant change of circumstances? 

There is no fixed list, but courts have consistently held that the change must be more than minor or temporary. Examples that may qualify include a parent relocating to another city or state, a significant change in the child's health or educational needs, a material change in a parent's work schedule or living situation, or new safety concerns that were not present when the original orders were made. The courts have been clear that ordinary disagreements about how orders are being carried out do not meet the threshold.

What happens if I relocate without varying the parenting orders first?

Relocating in a way that prevents compliance with existing parenting orders can amount to a contravention of those orders. The other parent may apply to the court for enforcement, and the court has the power to require the relocating parent to return with the child while the matter is resolved. Where a relocation is planned, seeking to vary the orders through agreement or a court application before the move is strongly advisable.

Do I need to attend mediation before applying to vary parenting orders? 

In most cases, yes. The pre-action requirements for parenting matters require parents to attempt family dispute resolution and obtain a section 60I certificate before filing an application to vary parenting orders, unless an exemption applies. Exemptions cover situations involving family violence, a risk of child abuse, and certain urgent or enforcement-related circumstances.

Can a child's wishes affect whether parenting orders are varied?

A child's views are one of the considerations the court may take into account when assessing the best interests of the child under section 60CC of the Family Law Act 1975. The weight given to those views will depend on the child's age, maturity, and the circumstances of the case. A child's expressed preferences alone are unlikely to be sufficient to justify varying final orders without the section 65DAAA threshold also being met.

Glossary of terms

Addback. A historical family law concept that allowed a court to notionally restore funds to the property pool even though those funds no longer existed. Abolished following the Family Law Amendment Act 2024 and confirmed by Shinohara [2025].

Asset pool. The total value of property, financial resources, and liabilities available for division between separating parties in a family law property settlement.

Balance sheet. A document used in family law proceedings that sets out the assets, liabilities, superannuation entitlements and financial resources of both parties. Following Shinohara, the balance sheet must reflect only property that actually exists.

Contributions assessment. The process by which a court weighs each party's financial and non-financial contributions to the relationship, including income, inheritances, homemaking, and parenting. Under the post-Shinohara framework, the impact of dissipated funds is now argued here rather than through an addback.

Dissipation. The spending or disposal of assets in a way that reduces the property pool available for division. Previously a basis for an addback claim; now addressed through sections 79(4) and 79(5) of the Family Law Act.

Family Law Amendment Act 2024. Federal legislation that amended the Family Law Act 1975, commencing 10 June 2025. The amendments include a revised section 79(3) that restricts property settlement adjustments to existing property only.

Future needs adjustment. An adjustment made under section 79(5) of the Family Law Act that accounts for the future financial circumstances of each party, including age, health, earning capacity, and the care of children.

Injunction. A court order that requires a party to do something or to stop doing something. In family law property proceedings, an injunction can be used to prevent a party from selling, transferring, or otherwise dealing with assets before a settlement is reached.

Notional property. Property that no longer physically exists but was previously treated as though it did for the purposes of a property settlement calculation. This concept has been abolished under the amended Family Law Act.

Property settlement. The legal process by which separating couples divide their assets, liabilities, and financial resources. In Australia, property settlements under the Family Law Act must be just and equitable.

Section 79(3)(a)(i). The amended provision of the Family Law Act 1975 that restricts the court to identifying and adjusting only property that exists at the time of the hearing. This is the operative provision that abolished addbacks.

Section 79(4). The provision governing the assessment of contributions in a property settlement, including financial contributions, non-financial contributions, and contributions as homemaker or parent.

Section 79(5). The provision governing future needs adjustments, including considerations of each party's age, health, income, earning capacity, financial resources, the care of children, and the impact of the settlement on their ability to become financially self-sufficient.

Wastage. Conduct by one party that results in the reduction or dissipation of assets that would otherwise have formed part of the property pool. A recognised basis for adjusting a settlement outcome, now argued under sections 79(4) and 79(5).