Halloran & Keats (2023) FedCFamC1A 56
The appeal in Halloran & Keats [2023] FedCFamC1A 56 is a judgement dealing with parenting.
The appeal was allowed, and Orders made on the 15th of December 2022 were set aside, three of the Orders made on the 20th of June 2018 were aside and the matter was sent back to rehear an Amended Initiating Application filed in November 2022 and a Response to an Initiating Application filed on the 14th of September 2022. Costs Certificates were given.
The mother had appealed eight Orders dismissing her application to revise existing Parenting Orders and compelling her to pay the father’s costs of successfully resisting her application.
The parties had Consent Orders in place that were made in June 2018.
Those original Orders:
“also purported to regulate the manner in which the parties could revise them, by expressly providing this:
That the mother may submit to an independent psychiatric assessment, involving the provision of a written report. In the event she does so she shall ensure the psychiatrist is provided with copies of the reports previously prepared by [other expert witnesses]; the father’s affidavit affirmed 1 June 2018, and the mother’s affidavit affirmed 29 May 2018, and the mother shall make available to the psychiatrist any further material requested by the psychiatrist.
The mother must serve a copy of any such psychiatric report on the father by email or by post.
Both parties have liberty to apply to vary all Orders except 1, 2, and 10 on one occasion upon the completion of Orders 20 and 21, and this will be the occasion referred to in Notation A.”
There was a notation that said:
“Notwithstanding the authority of Rice v Asplund, that once the mother has complied with Orders 20 to 21, that the parties be at liberty to seek a variation of all Orders except 1, 2, and 10 on one occasion without demonstrating there has been a significant change in circumstances since these Orders were made and neither party shall raise that as a reason the Court should not hear the application.”
This case was of interest because from time-to-time parties do wish to have Orders that can be revisited on their own terms without needing to run the gauntlet of the Rice v Asplund tests.
It would appear that goal was that the mother was free to revive the proceedings “in an attempt to vary the original orders (save those governing the children’s residence and parental responsibility), provided only that she first obtains and serves an independent psychiatric assessment”.
In August 2022 the mother sought “the wholesale discharge and replacement of the existing orders.”
There was a hearing and “the primary judge only ordered the dismissal of the mother’s Initiating Application, but not her Amended Initiating Application, despite being well aware of the application in its amended form. Nevertheless, it is accepted by the parties that the appealed orders were intended to finalise the entire cause – not just to dismiss the mother’s primary application and leave her fall-back application to be determined on the merits at some later time.”
The mother’s amended application had brought her within the terms of the original plan that she wouldn’t need to establish a Rice v Asplund circumstance, but her original application had been one that would require it.
The Appeal Court found:
“The procedural unfairness and erroneous application of legal principle which can be identified in the Reasons for Judgment both stem from disagreement over the proper construction of the June 2018 Orders and the manner in which those Orders blocked the mother’s applications.”
The Court said the orders thereby “purport to exclude the operation of the principles established by Rice v Asplund under certain conditions.”
The difficulty was that her original application took her outside the ambit of the means by which the parties had intended to exclude the operation of the principles of Rice v Asplund and it was that application that was dismissed but the mother had filed a more cautious application that did bring her within the ambit of the 2018 plan.
The Appeal Court said:
“contrarily, the primary judge appears to have imposed upon her the obligation to demonstrate materially changed circumstances in all respects.”
Although the primary judge who had dismissed her application had not questioned the validity of the June 2018 Orders 20-22, the Appeal Court said:
“An anterior question arises as to the validity of those orders for two reasons. First, the source of power to make the orders is quite unclear and, without any source of power, they are ultra vires and hence invalid. Secondly, the orders are irreconcilable with the guideline legal principles espoused in Rice v Asplund, which principles require the demonstration of materially changed circumstances whenever any application is made under s 65D(2) of the Act to vary existing parenting orders.”
Section 64B(2)(g) of the Act defines a Parenting Order. That includes one which prescribes the conditions which must be fulfilled before an application is made to change Parenting Orders.
That section is shaped by the provisions of s 64B(4A) of the Act.
“Section 64B(4A) expressly states it does not limit the meaning of s 64B(2)(g) of the Act, but that does not mean the latter sub-section can be read so broadly as to empower the making of any condition imaginable to hinder a litigant’s right to re-contest parenting orders. There must be some proscription on the width of the sub-section, even if its limitations must be implied.”
His Honour says:
“The exercise of statutory power to make an order either shutting out or restricting a litigant’s right to litigate is serious and must be exercised with due care.”
This decision then refers to Oberlin & Infeld [2021] FamCAFC 66.
The Appeal Court in this case says:
“The Full Court discussed the caution with which a judge should contemplate and craft any order which conditions a litigant’s right to bring fresh proceedings under Pt VII of the Act, so as not to stray beyond express or implied statutory power. Those observations are pertinent here.”
The Court talks about limitations placed on litigants by Rice v Asplund and says:
“Such obligations imposed by law cannot be relieved by an order, whether merely procedural or purportedly made in the guise of a substantive parenting order. Orders are made by courts to fulfil the law, not to undermine or circumvent it.”
The Appeal Court said:
“There could be little doubt then that the primary judge understood how the mother asserted she was entitled to re-open the proceedings pursuant to the text of Orders 20–22 and Notation A, and just as importantly, how her fall-back position was supposedly governed by those orders and that notation, even though her primary application was not.”
The Appeal Court said:
“Regardless of the way in which the primary judge chose to construe the June 2018 orders, they were still used to globally dismiss both aspects of the mother’s dual application without differentiation.”
The Appeal Court said:
“Orders 20–22 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 s 138 of the FCFCA Act 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 power to do so exists in ss 36(1)(b) and 36(5) of the FCFCA Act.”
The Appeal Court said that the mother’s dual application, which must be re-heard by another judge, will entail application of the Rice v Asplund guideline principles unconstrained “by the artificial construct imposed by Orders 20–22 and Notation A.”