In the recent case of Edmonds & Whyte & Anor [2017] FCCA 2733 (13 November 2017), the Federal Circuit Court of Australia handed down a decision setting aside a parenting order made final in the absence of a party to the proceeding. The decision was made despite the opposition from the mother, maternal grandmother and Independent Children’s Lawyer.

When the father of two children aged six (6) and eight (8) (‘the children’) applied to set aside the final parenting order, the Court contemplated whether the father’s previous conduct warranted such a decision.
By way of background, the father had spent significant time away from the children serving time in prison and residing interstate.

Court Analysis

In 2015, the father sought orders that the children live with him in the long term. In support of the request, the father placed material before the court addressing previous allegations of drug, alcohol and mental health issues.
In 2017, a family report was presented to the Court indicating that the father had attended multiple supervised visits with the children as scheduled. The father provided an explanation to most of his absences.

It was disputed whether the father was aware of the final hearing date for the proceeding as he failed to appear.
The father did not file his material until around four (4) weeks after the final orders were made. The Court was concerned with the fact that the father failed to take urgent action upon receiving notice of the final decision. As the final orders purported to exclude the father entirely from the children’s lives, Judge Burchardt decided to revisit the decision once the father took issue.

The Court applied Rule 16.05 of the Federal Circuit Court Rules, and considered factors such as the explanation for a failure to appear, the possibility of a different result and any prejudice to the other party (and how this may be addressed).

In this case, the father’s sporadically irresponsible behaviour was balanced against the fact that the children could ultimately benefit from maintaining some form of relationship with him.

The practical outcome of removing the children’s relationship with their father forever was put in perspective, and the father’s application to set aside the final parenting order made in his absence succeeded.

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