Ellsworth & Hunnisett: Final Parenting Orders Made By Consent
The 2021 decision of the Full Court of the Family Court Ellsworth & Hunnisett established that parenting orders made by consent cannot be appealed based on the merits of the orders. The matter of Ellsworth & Hunnisett was an appeal brought by the father in respect of final parenting orders made by consent. The father sought to appeal the consent orders on a number of grounds and adduce further evidence in the appeal This article examines whether orders that were made by consent can be appealed on the basis of merit. The other grounds advanced in Ellsworth & Hunnisett are not examined in detail (but were ultimately dismissed).
Background facts in Ellsworth & Hunnisett
Final orders were made by consent which provided for the mother to have sole parental responsibility for the child and for the child to live with the mother and spend no time and have no communication with the father. The orders also contained injunctions, which prevented the father from communicating with the Independent Children’s Lawyer (or the Independent Children’s Lawyer’s counsel) or the mother’s legal representatives.
Further, the consent orders provided that the father had to meet certain requirements before the court would accept an application for parenting orders by him, including reports from psychiatrists, clear drug test results, and evidence that no domestic violence had occurred and no proceedings had been initiated for set periods of time.
How do orders made by consent differ from orders made by the court?
The court referred to the 2016 decision of Darley v Darley, which referred to the principles in the 1982 case of Robinson v Willis that:
- “The fact that an order is made by consent does not make that order of any different nature from an order made otherwise… The order derives its force from the circumstance that it is a valid order made by the Court in question, not from the agreement of the parties.
- Amongst other conclusions which follow from that is that such an order may, subject to important qualification, be the subject of appeal in the same way as any other order. The important qualification is that as a consent order is made as a consequence of the consent of the parties to the court making that order, and not an adjudication by the court, the order may not be challenged by an appeal which is directed to the correctness of that order, that is, it cannot be appealed against on the merits. However, other grounds of appeal remain available as for example, fraud, mistake, fresh evidence, absence of jurisdiction… “
The court in Darley v Darley further referred to the principles espoused in Thwaite v Thwaite  2 All ER 789 where the Court of Appeal found:
“Similarly, as orders of the court [consent orders] must be subject to the provisions which apply to appeals from orders made at first instance, though with one important exception. Where the court of first instance has not adjudicated on the evidence its decision cannot be challenged on the ground that the court has reached a wrong conclusion on the evidence before it. Final orders of all kinds, however, can be challenged on appeal and may be set aside on other grounds.” 
What did the court decide in Ellsworth & Hunnisett?
In Ellsworth & Hunnisett, the court considered that it was open to both parties to have their matter decided by the primary judge and “adjudicate it on the facts”. The court found that they chose, instead, to agree to certain orders and in essence, asked the court to make the orders without adjudicating upon the issues that had been raised in the proceedings. The court further found that in making their respective applications for the orders to be made by consent, the parties were submitting to the court that the proposed orders were in the best interests of the child .
The court ultimately held that orders made by the consent of the parties and without adjudication of the court, cannot be appealed on the merits. There are other grounds of appeal that might be considered when orders have been made by consent, but merit is not one of them.
The court dismissed the appeal and the application for costs made by the Independent Children’s Lawyer, but awarded costs to the mother.
Parties should be mindful that when reaching final orders by consent they are not able to appeal the orders due to merit. There may, however, be other grounds that they can rely on in appealing the orders.
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