Children – consent orders ‘ultra vires’ – allowed mother to reopen proceedings…

…subject to obtaining psychiatric assessment – purported exclusion of Rice & Asplund

In Halloran & Keats [2023] FedCFamC1A 56 (2 May 2023), Austin J heard a mother’s appeal against the dismissal of her application to vary parenting orders.

The orders were made in 2018 by consent. They provided for the parties’ three children to live with the father and spend supervised time with the mother.

They also gave the parties liberty to apply to vary the orders, upon the mother submitting to an independent psychiatric assessment and provision of a written report.

A notation purported to exclude the application of Rice & Asplund [1978] FamCA 84 in part. The notation said once the mother had obtained the psychiatric report, she could seek to vary all orders, save that to vary the parental responsibility and residence order, she would still need to establish a significant change in circumstances.

Austin J said (from [28]):

“Section 65D(2) of the [Family Law] Act [1975 (Cth)] expressly envisages the need to vary parenting orders but, whenever any litigant applies to vary a parenting order, he or she must first demonstrate a material change in circumstances to warrant the variation application being entertained … Such obligations imposed by law cannot be relieved by an order … Orders are made by courts to fulfil the law, not to undermine or circumvent it.

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[29] [If the orders] … made in June 2018 were ultra vires … then the primary judge fell into appealable error by assuming they were valid and by purporting to deploy them to govern the outcome of the dispute …

(…)

[39] [The orders] … made in June 2018 are most probably not valid parenting orders or injunctions. Nor could they be properly regarded as valid procedural orders. … Those orders should be set aside, for otherwise s138 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) … requires that they be treated as efficacious. The fact those orders were neither appealed at the time nor the subject of this appeal does not preclude their discharge …”

The appeal was allowed and the proceedings remitted for rehearing. Costs certificates were granted.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively).