FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Halloran & Keats [2023] FedCFamC1A 56
Appeal from: Keats & Halloran [2022] FedCFamC2F 1724 Appeal number(s): NAA 286 of 2022 File number(s): CAC 2603 of 2021 Judgment of: AUSTIN J Date of judgment: 2 May 2023 Catchwords: FAMILY LAW – APPEAL – Parenting – Appeal against the primary judge’s dismissal of the mother’s application to re-open proceedings and vary final consent orders made in 2018 – Where the consent orders give the mother the right to re-open the proceedings and seek variation of the orders regulating the manner in which the children spend time with her, subject to her acquisition of an independent psychiatric assessment – Where there is an anterior question as to the validity of those orders – Where the source of power to make the orders is unclear and, without any source of power, are ultra vires and hence invalid – Where the orders purport to exclude the operation of the principles established by Rice v Asplund under certain conditions – Where the primary judge imposed upon the mother the obligation to demonstrate materially changed circumstances in all respects despite her compliance with the terms of the orders – Procedural unfairness – Erroneous application of legal principles – Appeal allowed – Matter remitted for rehearing – Costs Certificates granted to the appellant and the respondent in respect of the appeal and the re-hearing. Legislation: Family Law Act 1975 (Cth) Pt VII and Pt XIB, ss 45A, 64B, 65D and 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 138 and 143
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.21
Cases cited: Langmeil & Grange [2013] FamCAFC 31
Marriage of Paskandy (2005) 33 Fam LR 509; [2005] FamCA 755
Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
Meadows & Meadows (No.5) [2021] FamCAFC 42
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Pencious & Searle (2017) FLC 93-085; [2017] FamCAFC 210
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs: 48 Date of hearing: 2 May 2023 Place: Sydney Counsel for the Appellant: Mr Duane Solicitor for the Appellant: Farrar Gesini Dunn Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Robinson + McGuinness ORDERS
NAA 286 of 2022
CAC 2603 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HALLORAN
Appellant
AND: MR KEATS
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
2 May 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The Orders made on 15 December 2022 are set aside.
3.Orders 20, 21 and 22 made on 20 June 2018 are set aside.
4.The proceedings are remitted…
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- AGLC
- Halloran & Keats [2023] FedCFamC1A 56
- Case
- [2023] FedCFamC1A 56
- Decision Date
CaseChat Overview and Summary
The appeal by the father, Halloran, against orders made in the Federal Circuit and Family Court of Australia, concerns the parenting arrangements for the three children of the parties, Keats and Halloran. The original orders, made in 2018, gave the father sole parental responsibility for the children, with the children to live with him and only to spend time with the mother under supervision and intermittently. The mother subsequently applied to discharge and replace these orders, proposing sole parental responsibility for herself, residence with her, and periodic interaction with the father. This application was brought despite the original orders expressly limiting the circumstances in which the mother could apply for changes to the orders, other than those concerning residence and parental responsibility.
The legal issues for the court included the interpretation of the original orders, particularly Orders 20-22 and Notation A, which seemingly allowed the mother to apply for changes to other orders once she obtained an independent psychiatric assessment. The father argued that these orders and the notation were intended to prevent the mother from applying to vary the original orders unless there had been a significant change in circumstances. The mother contended that the orders and the notation allowed her to apply for changes to other orders, without the need for a significant change in circumstances, as long as she obtained the psychiatric assessment. The court had to determine the proper interpretation of these orders and whether the mother's application was constrained by the original terms.
The court found that the original orders and Notation A were clear in their intent to prevent the mother from applying to vary the orders concerning residence and parental responsibility without a significant change in circumstances. The court held that the mother's application, which sought to impugn these specific orders, was not permitted by the terms of Orders 20-22 and Notation A. The court concluded that the mother's application was beyond the scope of the original orders and was not in accordance with the specific terms allowing her to apply for changes to other orders. Consequently, the appeal was allowed, and the proceedings were remitted for re-hearing.
The final orders of the court were to allow the appeal, remit the proceedings for re-hearing, and direct that the mother's application be considered in light of the court's interpretation of the original orders and Notation A. The court's decision clarified the scope and limitations of the original orders and ensured that the mother's application was in accordance with the terms agreed upon by the parties in 2018.
The legal issues for the court included the interpretation of the original orders, particularly Orders 20-22 and Notation A, which seemingly allowed the mother to apply for changes to other orders once she obtained an independent psychiatric assessment. The father argued that these orders and the notation were intended to prevent the mother from applying to vary the original orders unless there had been a significant change in circumstances. The mother contended that the orders and the notation allowed her to apply for changes to other orders, without the need for a significant change in circumstances, as long as she obtained the psychiatric assessment. The court had to determine the proper interpretation of these orders and whether the mother's application was constrained by the original terms.
The court found that the original orders and Notation A were clear in their intent to prevent the mother from applying to vary the orders concerning residence and parental responsibility without a significant change in circumstances. The court held that the mother's application, which sought to impugn these specific orders, was not permitted by the terms of Orders 20-22 and Notation A. The court concluded that the mother's application was beyond the scope of the original orders and was not in accordance with the specific terms allowing her to apply for changes to other orders. Consequently, the appeal was allowed, and the proceedings were remitted for re-hearing.
The final orders of the court were to allow the appeal, remit the proceedings for re-hearing, and direct that the mother's application be considered in light of the court's interpretation of the original orders and Notation A. The court's decision clarified the scope and limitations of the original orders and ensured that the mother's application was in accordance with the terms agreed upon by the parties in 2018.
Orders
Orders of the court
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Background
Background to the litigation
For the following reasons, the appeal is allowed and the proceedings are remitted for re-hearing.Background In June 2018, orders were originally made between the parties, with their consent, in respect of their three children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). In effect, the orders provided for the children to live with the father and for him to have sole parental responsibility, but for them to only spend time with the mother under professional supervision and to communicate with her intermittently. The original orders also purported to regulate the manner in which the parties could revise them, by expressly providing this:20.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. 21.The mother must serve a copy of any such psychiatric report on the father by email or by post.22.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.(Emphasis added) Those orders were attended by a notation in these terms:A.That 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.(Emphasis added) The references therein to Orders 1, 2 and 10 were to the specific orders which conferred sole parental responsibility for the children upon the father and required them to live with him. Objectively discerned, the meaning of Orders 20–22 and Notation A is 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. The evident problem created by those orders and the ancillary notation will be exposed in the discussion of the appeal. About four years later, on 16 August 2022, the mother filed an Initiating Application, by which she sought the wholesale discharge and replacement of the existing orders. She proposed her allocation with sole parental responsibility for the children, their residence with her, and their periodic interaction with the father. Clearly, this was an application which sought to impugn Orders 1, 2 and 10 and so ventured beyond and was not captured by the specific terms of Orders 20–22 and the accompanying Notation A.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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