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When parenting orders are in place, they’re legally binding—which means both parents are expected to follow them. But what happens if circumstances change and the current arrangements no longer work?
Many parents assume that once orders are made, they can be changed easily if the situation shifts. However, a recent court decision has reaffirmed that the legal test for varying parenting orders remains unchanged.
The December 2024 decision in Radecki & Radecki confirmed that despite amendments to the Family Law Act in May 2024, the threshold to vary final parenting orders remains high. This case has provided clarity for parents who were uncertain about whether legislative changes had altered the way courts assess applications to modify orders.
So, what does this mean if you want to apply for a change?
Can Parenting Orders Be Changed?
Yes—but not automatically. The starting position in family law is that final parenting orders should be followed. Courts don’t allow changes lightly, even if one parent believes the orders are no longer suitable.
To vary existing parenting orders, a parent must demonstrate a significant change in circumstances since the orders were made. This principle was first established in Rice & Asplund (1979) and remains the key test today, as confirmed in Radecki & Radecki (2024).
Related: So You’re Navigating the New Family Law Changes – Learn about recent updates to the Family Law Act and what they mean for parenting matters.
What Did Radecki & Radecki Confirm?
The Radecki decision reaffirmed that the Rice & Asplund test continues to apply when assessing applications to change parenting orders. This means that despite amendments to the Family Law Act in May 2024, the core legal principles governing variations remain intact.
The court made it clear that:
- A significant change in circumstances must be demonstrated before an application to change parenting orders will be considered.
- The best interests of the child remain the court’s primary focus.
- Avoiding unnecessary litigation is key—the court will not allow repeated challenges to final orders without a compelling reason.
The case addressed uncertainty about whether the 2024 legislative amendments had lowered the threshold for varying parenting orders. The court ruled that the Rice & Asplund test continues to apply, meaning the bar for changing final orders remains high.
See section 65DAAA of the Family Law Act (where this test was codified).
What Is the ‘Rice & Asplund’ Test?
The Rice & Asplund principle requires a parent applying for a change to prove that there has been a material change in circumstances significant enough to warrant the court revisiting the original orders.
A court will not simply reopen a case because one parent is unhappy with the current arrangement. Instead, the judge must be satisfied that:
- There has been a significant change in circumstances since the original orders were made.
- It is in the best interests of the child to reconsider the parenting orders.
- The benefit of changing the orders outweighs the emotional and financial cost of reopening proceedings.
The Radecki decision confirmed that this test remains firmly in place.
What Might Qualify as a Significant Change?
While every case is different, examples of significant changes that may justify a review of parenting orders include:
- One parent relocating a significant distance away.
- A parent developing a serious health condition that impacts their ability to care for the child.
- A new risk to the child’s wellbeing, such as exposure to family violence or neglect.
- The child’s mature views changing (particularly if they are now older and their needs are different).
- A parent repeatedly breaching the orders without reasonable excuse.
Not all changes will meet the threshold. A parent simply disagreeing with the current arrangements or believing they’re unfair isn’t enough.
What If Both Parents Agree to Change the Orders?
If both parents agree that the existing orders no longer work, they can make changes without going to court by:
- Creating a new parenting plan – This is a written agreement signed by both parents but is not legally enforceable.
- Applying for consent orders – This formalises the new agreement and makes it legally binding.
A parenting plan can override existing court orders to some extent. Under section 64D of the Family Law Act 1975, if parents create a new parenting plan after final orders have been made, a court must consider the new agreement if there is a dispute about compliance with the original orders.
However, a parenting plan does not automatically change or revoke a consent order. If there’s a risk that one parent won’t follow the new arrangements, it’s usually best to apply for updated consent orders to provide legal certainty.
What If Parents Can’t Agree?
If one parent wants to change the orders and the other doesn’t, the parent seeking the change must apply to the court and prove that there has been a material change in circumstances under Rice & Asplund, as confirmed in Radecki & Radecki.
The court will then consider:
- Whether the change is significant enough to justify reopening the case.
- Whether varying the orders is in the child’s best interests.
If the court decides the change is not justified, the existing orders remain in place, and both parents are expected to comply.
How Hard Is It to Change Parenting Orders?
It’s important to understand that the Rice & Asplund threshold is intentionally high. Courts do not want children caught in ongoing litigation where one parent repeatedly tries to reopen the case.
The Radecki ruling has reinforced that there is no automatic right to change parenting orders. The court will only consider variations if:
- There has been a genuine and significant change in circumstances.
- The proposed change is clearly in the child’s best interests.
This means that even if you believe the current orders are unfair or inconvenient, that alone won’t be enough to have them changed. You’ll need to demonstrate a clear and compelling reason why the court should revisit the arrangements.
Final Thoughts
If you’re thinking about changing parenting orders, it’s essential to understand the legal test and whether your circumstances meet the threshold.
- If both parents agree, a parenting plan can update the orders to some extent, but formal consent orders offer stronger legal protection.
- If there’s no agreement, you’ll need to prove a significant change in circumstances before a court will consider varying the orders.
- The Radecki ruling has confirmed that the Rice & Asplund test still applies, meaning the bar remains high.
If you’re unsure about your options, seeking legal advice early can help you determine the best course of action.
Need guidance? Brisbane Family Law Centre can help you navigate parenting arrangements and understand your rights. Reach out to our team today to chat about your next steps.
