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Can I appeal Family Law Consent Orders?

Written by Karen-Anne Cornell

The short answer is yes. It is not true that you cannot appeal these types of orders. While it is not open to you to appeal them on the merits (because a court did not make the orders after a full ), other grounds of appeal may be available to you, such as the discovery of fraud or new evidence which was not available at the time the orders were made.

In the case of parenting orders, the overarching principal will always be the rights of the children and orders which serve their best interests.

In the case of Ellsworth & Hunnisett [2021] FamCAFC 6 (4 February 2021), a father appealed consent orders which provided for the mother to have sole parental responsibility and for him to spend no time with their 10 -year- old child. It was also ordered that if any other application was to be brought before the court following the making of the consent orders, the father was to provide a psychiatrist’s report detailing his rehabilitation from polysubstance abuse; four clean drug tests and evidence proving the absence of domestic violence proceedings.

In his appeal, the father argued that his legal team had been incompetent and that as such, he had been “stripped of his rights as a father”, ([29]) which led to a miscarriage of justice.

In dismissing the appeal it was stressed that the orders had been presented to the court as those which were in the child’s best interests and that:

  • “No legislated ‘right’ of a parent is infringed by the making of parenting orders driven by the imperative of meeting the best interests of a child..” ; [35] and further that
  • Consent orders will always be “open to appeal on the grounds of matters such as fraud, mistake, fresh evidence, [or] absence of jurisdiction …” (Robinson and Willis [1982] FamCA 16]. In the case of Ellsworth & Hunnisett, none of these factors were present.

In summary, Ellsworth and Hunnisett is a reminder that any orders can be appealed, (even those made by way of consent), provided the grounds of the appeal can be established.

If you wish to appeal a family law consent order, (or a final order made by the court after a hearing), it is imperative you seek legal advice as soon as possible, as strict time limits apply.

To speak to one of our experienced team at the Summit Law Group who will assess the strength of your case, book your no obligation free consultation today.