Appealing Orders made by consent

In the case of Charring & Bunt the Appeal Court of the Family 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.

Justice Ryan stated "the fact that an order is made by consent does not make the order any different to an order made after a hearing." Her Honour went on to say that that there was one important qualification however: "the correctness of an order may not be appealed on its 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 case, Justice Ryan found that while the mother's complaint that the Independent Children's Lawyer (ICL) was biased had "the flavour of vitiating grounds" (with the allegation perhaps being mistake on behalf of the ICL) the ICL was entitled to form a view about the outcome and merely because that approach differed from the mother's that did not amount to error. Further, that the mother was not aware that the father had not attended upon a psychologist was also not grounds for overturning the consent orders as that information had been available in the available subpoena material and a decision was made by the parties to enter into the consent orders without consideration of that material.

The mother's application for appeal therefore failed.