In
the recent case of Charring & Bunt
the Appeal Court
set out a clear annunciation of the issues involved in attempting to appeal
parenting orders that were made by the consent of both parties.
The
mother, who was appealing out of time, seemed to be asserting three ground of
appeal: bias on the part of the Independent Children's Lawyer (ICL), the
father's alleged failure to comply with orders regarding his attendance upon a
psychologist and the possibility that the Department of Community Services
would seek to have a Magellan Report ordered.
Justice
Ryan set out that "the fact that an order is made by consent does not make
the order any different to an order made after a hearing. The order derives its
force from the circumstances that it is a valid order made by the court in
question, not from the agreement of the parties. Therefore, save for an
important qualification, an order made by consent may be the subject of an
appeal in the same way as any other order."
Her
Honour went on to say that the 'important qualification' is that "the
correctness of an order may not be appealed on it merits by a party who
consented to the order. Rather, that party's right of appeal is limited to
vitiating grounds, such as fraud, mistake, fresh evidence or the absence of
jurisdiction."
In
this instance, while the mother's complaints about the ICL 'had the flavour of
vitiating grounds' (with the allegation perhaps being mistake) the ICL was
entitled to form a view about the outcome and merely because that approach
differed to the mother's could not amount to error. Further, nor could the fact
that the parties entered into the consent orders prior to reviewing the
subpoena material (although not stated in the judgement this appears to relate
to the father's lack of attendance on a psychologist) - "that was a forensic
decision which could not now impugn the orders on appeal." Finally, if the
Department has initiated the Magellan program that does not establish a basis
for appellate intervention.
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