Case Note limits of Judicial power in Parenting Orders

Summary of Facts:

The case involved a parenting dispute concerning a 6-year-old child. The father had a documented history of anger management issues and family violence. The trial judge made final orders allowing the father to spend supervised time with the child each weekend. However, the orders included a condition that unsupervised time could commence only after the father completed a course of cognitive behavioural therapy with a qualified psychologist. In addition, the therapist was required to provide a report to the mother confirming that the father had understood and accepted his history of family violence, and that he had gained sufficient insight into managing his anger to eliminate any unacceptable risk to the child.

These conditions were not requested by either party or the Independent Children’s Lawyer, nor were they recommended by the family report writer. The Full Court ultimately found these orders to be unenforceable and aspirational, improperly delegating judicial power to a third party.

Lainhart & Ellinson [2023] FedCFamC1A 200

In Lainhart & Ellinson [2023] FedCFamC1A 200, the Full Court clarified critical principles surrounding parenting orders under the Family Law Act 1975 (Cth). This decision is now a leading authority on the limits of judicial power, the enforceability of parenting conditions, and the role of therapeutic input in family law proceedings.

The trial judge had made parenting orders requiring one parent to “understand and accept” their past conduct before being permitted unsupervised time with their children. A treating therapist was tasked with confirming compliance.

The parent appealed, arguing that the orders were unlawful and unenforceable.

The appeal raised three central questions:

1. Can the Court delegate decision-making to a therapist?
2. Are aspirational conditions like “understanding” or “acceptance” enforceable?
3. Is it appropriate for the Court to act as a therapeutic body?

The Full Court allowed the appeal, finding the orders invalid. The Court held that:

• Judicial power had been improperly delegated to a third party.
• The orders were vague and aspirational, lacking enforceability.
• The Court’s role is adjudicative, not therapeutic.

Legal Principles Clarified

1. No Delegation of Judicial Power
   Parenting orders must be determined by the Court. Conditions cannot rely on third-party opinions or confirmations.

2. Orders Must Be Enforceable
   Under s 65D, orders must be clear and capable of enforcement. Aspirational language is insufficient.

3. Courts Are Not Therapeutic Agencies
   While the Family Law Act encourages counselling (ss 10F, 13C), the Court must base decisions on evidence, not therapeutic progress.

4. Parties Must Be Taken as They Are
   Orders must reflect the current evidence, not assumptions about future behavioural change.

5. Best Interests Within Legal Limits
   The child’s best interests (s 60CA) remain paramount, but must be balanced with enforceability and proper judicial process.

Implications for Family Lawyers

This case provides clear guidance for practitioners:

• Avoid drafting parenting orders contingent on therapeutic milestones.
• Ensure all orders are specific, enforceable, and based on current evidence.
• Use direct language when supervision is required.
• Recognise that aspirational or speculative conditions are not legally valid.

The principles from Lainhart & Ellinson have already influenced subsequent decisions, including Miyajima & Mikkelsen [2024] FedCFamC1A 208.

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