Gilbert v Estate of Gilbert

IT IS NOTED that publication of this judgment by this Court under the pseudonym Palmisano & Angelov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This appeal is summarily dismissed because it exhibits no reasonable prospect of success (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
2. On 20 August 2025, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders between the parties, with their consent, to determine the cause of action between them under Pt VII of the Family Law Act 1975 (Cth) ("the Act") in respect of their only child.
3. Relevantly, the orders provide for the child to live with the mother (Order 2) and for her to have "sole parental decision-making responsibility" for the child (Order 1). The child is to spend time with the father on alternate weekends (Order 3a), in school holidays (Orders 4-14), and on other special occasions (Order 15), including Father's Day (Order 15a).
4. Despite the orders being made with his consent, the father appealed from Orders 3a and 15a. The appeal was then listed to afford him the chance to explain why it should not be summarily dismissed. He made both written and oral submissions and, even though he genuinely believes the orders impracticably integrate with other orders that govern arrangements for his son of another relationship (the child's half-sibling), he failed to persuade the appeal had any merit.
5. The subject orders were pronounced with the father's consent and may be appealed in the same way as any other order because orders derive their force from the power of the Court to make them, not from the agreement reached by the parties (Gilbert v Estate of Gilbert (1990) FLC 92-125 at 77,839). However, that general proposition is subject to an important qualification. The correctness of an order cannot be appealed on its merits by a party who assented to the order. That party's right of appeal is limited to grounds which vitiate either the anterior agreement between the parties or the integrity of the order itself because of an absence of jurisdiction or lack of power to make it (Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 244).
6. Save in two respects, the grounds of appeal do not challenge Orders 3a or 15a on such limited premises, meaning Grounds 1, 2, 3, 4, 6, 7 and 9 have no merit.
7. However, Grounds 5 and 8 are pleaded as follows:
   1. The Consent Orders made on 20/08/2025 contain provisions, specifically Order 3a (relating to Saturday time with [the father's other child] present), that were not properly explained to the [father] prior to signing, resulting in a misunderstanding of their effect.

...

1. The Consent Orders were agreed to without the [father] receiving adequate legal advice or explanation regarding the handwritten amendments and their legal implications. This amounts to procedural unfairness and has resulted in substantial injustice.

1. In written submissions filed in these proceedings, the father alleged:

The father had no lawyer present at the time of signing the consent orders. While a barrister was present, the orders were not fully explained, including their practical implications and interaction with existing orders for [the father's other child].

(Father's written submissions filed 2 September 2025, p.2)

1. The father was represented by counsel when the orders were made, who represented to the primary judge that the suite of orders mutually proposed enjoyed the father's consent.
2. The adversarial system of litigation proceeds upon the assumption that parties are bound by the conduct of their legal representatives (Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 at [114]; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [8] and [74]), including by representations made to the Court by counsel on the client's behalf.
3. Orders 3a and 15a are plain enough on their face. They respectively provide for the child to spend time with the father each alternate weekend during school terms and on Father's Day. The father conceded he signed the consent orders to affirm his consent to them. It is difficult to accept the father misunderstood the orders but, even if he did, the Court acted on his counsel's assurance he understood and assented to them. There is no evident miscarriage of justice to which the father can point to justify an appeal from those two orders.
4. Any complaint the father has about the adequacy of the explanation given to him by his lawyers about the effect of Orders 3a and 15a must be taken up with them or the professional bodies which regulate their practice (Smits v Roach (2006) 227 CLR 423 at [46]).

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.