Case Notes - Procedural Fairness

16/05/2018

The Family Court of Australia recently considered an application by a father for an Order seeking to set aside Final Parenting Orders that were made by the Family Court without the father being present in Court or apparently aware of the proceedings.  The Orders that were made prevented the father from spending any time with his children.

The Court considered the circumstances in which the Court would set aside an Order and a Final Parenting Order.  The Court observed that the discretion to set aside Orders made in default of the parties’ appearance is “unfettered”.  The Court said it needed to have regard to the explanation given by the party who failed to appear as to the reasons why they failed to appear.  In this case (Edmonds and Whyte) the Court observed that the father had been in jail for certain periods and had not been a part of the children’s lives for some time but had made significant efforts to re-establish his relationship with his children.

The Court could not be absolutely certain as to whether or not the father had been advised or had received notice of the date of the trial.

Whilst the Court was not particularly impressed with the father’s explanation as to why it took him some weeks to make the application, the Court did in all the circumstances take the view that if the Orders were not set aside (and the Orders preventing him from spending any time with the children) the practical effect would be to remove him from his children’s lives forever.

The Court ultimately decided that notwithstanding the matter and facts counting against reinstatement Orders the father was granted his application and the Final Orders (made in his absence) were set aside.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

If orders have been made in your absence (for example as in the recent case) which you believe to be unfair and/or would deprive you of contact with your child/children, please contact Richard Watson Family Law solicitor or Shereen Da Gloria his assistant to discuss your concerns and the options available to you in relation to sustained contact with your child/children.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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