My ex has a new partner. Is that a “significant change in circumstances”?

In Australian family law, re-partnering can be considered a “significant change in circumstances” depending on the context, particularly in matters involving parenting arrangements or spousal maintenance. However, whether it qualifies as significant depends on the specific circumstances and how the re-partnering impacts the situation.

Under the Family Law Act 1975 (Cth), courts prioritize the best interests of the child when making or varying parenting orders. Re-partnering may be deemed a significant change if it materially affects the child’s welfare or the existing parenting arrangements. For example:

  • If the new partner has a significant role in the child’s life (e.g., living together), this could impact the child’s living arrangements or emotional well-being.
  • If the new partner’s circumstances (e.g., criminal history, behavior, or lifestyle) raise concerns about the child’s safety or best interests.
  • If re-partnering leads to a relocation that affects the child’s ability to maintain a relationship with the other parent.

The Codification of the Rule in Rice v Asplund

Courts require a material change in circumstances to revisit final parenting orders, as established in cases like Rice v Asplund (1979) FLC 90-725. Minor or irrelevant changes due to re-partnering may not suffice unless they demonstrably affect the child’s best interests. The Family Law Amendment Act 2023 (Cth), which took effect 6 May 2024, added a new section 65DAAA to the Family Law Act 1975 (Cth), this codifies the rule in Rice v Asplund. The rule provides that where there are final parenting orders in place, the applicant must establish that there has been a significant change of circumstances since the making of the orders before those orders can be reconsidered. The rule is founded on the notion that continuous litigation over a child or children is generally not in their best interests.

Section 65DAAA(2) provides:

(2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:

(a) the reasons for the final parenting order and the material on which it was based;

(b) whether there is any material available that was not available to the court that made the final parenting order;

(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);

(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

Relevant Case Law

Case law remains relevant to provide an indication of how the courts interpret specific situations and for the judicial guidance which can be gleaned from the written judgements.

Rice & Asplund [1978] FamCAFC 128

It is only in the best interests of a child to expose them to further court proceedings if there truly has been a significant change in circumstances since the final parenting orders.

“Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will 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 principles apply whether the order is made by consent or after a contested hearing.”

Radecki & Radecki [2024] FedCFamC1A 246 

On 19 December 2024, the Full Court of the Federal Circuit and Family Court of Australia (Division 1) delivered its judgment in Radecki & Radecki FedCFamC1A 246. This important decision provided the Full Court an opportunity to offer guidance on the interpretation and application of the new section 65DAAA concerning the reconsideration of final parenting orders.

The Full Court relied on Rice & Asplund which affirmed that a consideration of a significant change of circumstances since the final parenting order must occur and the court must be satisfied that it is in the best interests of the child for the parenting order to be reconsidered (section 65DAAA(1)(a) and (1)(b)).

The breakdown of a formerly cooperative parenting arrangement, the substantial passing of time since the parenting orders were made (6+ years) and the child’s maturity were, in combination, considered to amount to significant change of circumstances.

Proposed Relocation

A parent re-partnering is usually relevant when relocation is involved as the child’s split time between each parent would be affected and the current arrangements would be impractical.

Searson [2017] FamCAFC 119

In Searson [2017] FamCAFC 119, consent orders were made based on the understanding that the parties live in proximity and the children could have smooth transitions between households. The mother sought to relocate from Melbourne to Queensland with her new partner. The mother was successful upon appeal as this warranted a reconsideration of the final orders.

Galvez & Rendon [2009] FMCAfam 201

The mother had re-partnered, had a new child, intends to have another child in the future and plans to relocate to northern NSW. The decision to relocate does not amount to a significant change in circumstances.

The impractical changeover arrangement caused a high level of conflict between the parents. This situation is a relevant change in circumstances because the conflict between the parents is a direct negative impact upon the children. The parenting orders could be changed to accommodate more practical changeovers.

No Significant Change in Circumstances

Freeman & Freeman [1986] FamCA 23

The new facts and changed circumstances must be enough to issue a new investigation and safeguard the best interests of the child. Stability is a primary consideration for children as it is paramount to their wellbeing, therefore, changing the orders must be for a substantial reason.

The husband put foward the following reasons claiming a significant change in circumstances:

  • The husband feared he may have cancer and claimed he signed the consent orders due to these fears. This was not communicated to the wife or her legal representation. The change in circumstance was that the husband no longer feared cancer.
  • The husband’s income changed. It was decided that this factor would affect maintenance payments, not parenting.
  • The husband alleged that the wife and her de facto partner had a poor relationship with the children. The welfare reported stated that all the children have a good relationship with each parent. There was no reason as to why the de facto partner would be unfit to engage with the children. Additionally, the husband had repartnered, so this contradicted his questioning. The court believed that the husband was being spiteful in raising this argument.
  • The husband alleged that the wife neglected the children’s education, emotional wellbeing, developmental needs and medical attention. There was no support of these allegations.
  • The wife was unwilling to speak to the husband. The husband taped conversations resulting in the wife’s reluctance. The court justifiably agreed with the wife’s unwillingness.
  • The husband alleged that the wife was unable to provide a stable home as she relocated five times. This was unsubstantiated.
  • The husband complained that one of the children were developing psychological issues because they were unable to live together. The husband’s lack of support and compliance with the orders has caused the child to become upset and therefore any development of psychological harm is a result of the husband’s selfish behaviour.

The court did not accept any of these reasons. There was no relevant change, and the welfare of the children was not jeopardised.

Unacceptable Risk

A parent re-partnering could be a significant change in circumstances, if the new partner poses a risk to the child. However, the threshold of what a court considers to be an unacceptable level of risk maybe higher than what a parent would consider should be the the threshold. This is demonstrated in cases such as the Full Court case of Lang & Partington [2017] FamCAFC 40.

Key Point to Note

While there are many successful applications made to the courts, to change final parenting orders based on significant change in circumstances, there are also many matters which come before the courts and in which the court finds there was no significant change in circumstances. An unmeritorious application may result in an undue waste of resources, and potentially adverse costs consequences for the applicant. A parent must also consider the practical benefit to the child of any successful application and balance this against the resources, and damage to relationships which could outweigh any such practical benefit or change.

If you need help with your final parenting orders, please contact Jano Family Law.