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Final and Interlocutory Orders

Final and Interlocutory Orders

The appellate pathway for final and interlocutory Orders made by family law magistrates in Western Australia exercising non-federal jurisdiction

Pursuant to section 210A of the Family Court Act 1997 (WA) (“the Act”) the appellate pathway for a final Order made by a family law magistrate exercising non-federal jurisdiction in Western Australia is to the WA Supreme Court of Appeal. Pursuant to section 211 of the Act the appellate pathway for an interlocutory Order made by a Magistrate exercising non-federal jurisdiction in Western Australia is to the Family Court of Western Australia. A number of judgments have been delivered by the WA Supreme Court of Appeal and by the Family Court of Western Australia which have considered which Orders constitute final Orders and which Orders constitute interlocutory Orders.

In December 2015 the WA Supreme Court of Appeal handed down the decision of CDW v LVE [2015] WASCA 247. At first instance, the father made an application to the Magistrates Court of Western Australia seeking to vary parenting Orders, which had been made by a family law magistrate following a trial, due to changes in circumstances. The Magistrate determined that the changes in circumstances asserted by the father were insufficient to justify reopening the proceedings and she dismissed his application. The father then appealed the Magistrate’s Order dismissing the father’s application to the WA Supreme Court of Appeal.

The WA Supreme Court of Appeal, constituted by Martin CJ, Buss JA and Mitchell J, found that the WA Supreme Court of Appeal did not have jurisdiction to entertain the appeal as the Order made by the Magistrate constituted an interlocutory not a final Order. The Court stated at paragraph 55:

55        “…the order of the magistrate dismissing the father’s application for a variation to the parenting orders did not prevent the father from making a further application for the same relief. An evaluation of the likely outcome of such an application is irrelevant to the characterisation of the decision under appeal as either interlocutory or final. The theoretical prospect of such an application necessarily results in the characterisation of the magistrate’s decision as interlocutory because while the prospect of a further application remains theoretically open, the decision of the magistrate cannot be said to have finally determined the rights of the parties in relation to the parenting orders governing the upbringing of their child”.

In April 2016 the WA Supreme Court of Appeal handed down the decision of MCG v JM [2016] WASCA 75. At first instance, the husband made an application to the Magistrates Court of WA seeking, pursuant to section 205ZH of the Act, to set aside property settlement Orders which had been made by consent. The Magistrate dismissed the Husband’s application and the husband then appealed the Magistrate’s Order dismissing his application to the WA Supreme Court of Appeal.

The WA Supreme Court of Appeal, constituted by Martin CJ, Newnes JA and Mitchell J, found that the WA Supreme Court of Appeal did not have jurisdiction to entertain the appeal as the Order made by the Magistrate constituted an interlocutory not a final Order. The Court stated at paragraphs 5, 6 and 10:

5          “Essentially, the criterion to be applied is whether the order as made finally determines the rights of the parties. In addressing that question the court is required to look to the legal rather than the practical effect of the judgment. So if, as a matter of law, the unsuccessful party could make a further application for the same relief, even though such an application may have very little prospect of success, the order is properly characterised as interlocutory rather than final, and this court has no jurisdiction to entertain the appeal under s 210A of the Act.

6          As I have noted, the appellant’s application to set aside the order made by consent was made pursuant to s 205ZH of the Act. No provision of the Act limits the occasions upon which application may be made pursuant to that section. To the contrary, the section expressly provides for a variety of circumstances in which application may be made pursuant to its terms. In my view, it is implicit in the terms in which the section is expressed that application may be made pursuant to the section on more than one occasion if and when differing circumstances arise which might enliven the jurisdiction conferred upon the relevant court by the section.            …

10        As it is theoretically possible for MCG to again apply for an order setting aside or varying the orders made by consent, it follows that the decision from which she seeks to appeal is interlocutory in character rather than final. Accordingly, this court has no jurisdiction to entertain the appeal which must be dismissed.” 

In May 2016 the Family Court of Western Australia handed down the decision of Marino and Hodney [2016] FCWA 29. At first instance the husband made an application for property settlement Orders and the wife sought that his application be dismissed on the basis that the jurisdictional requirements of section 205Z of the Act had not been met. The Magistrate made an Order dismissing the husband’s application as she found that the parties had not been in a relationship for the minimum two year period and that, although the husband did make substantial contributions, that there would be no serious injustice to him if property settlement Orders were not made. The husband then appealed the Magistrate’s Order dismissing his application to the Family Court of Western Australia.

Justice O’Brien found that the Family Court of Western Australia did not have jurisdiction to hear the appeal as the Order made by the Magistrate was a final Order. He distinguished this case from the decision of MCG v JM (supra) as, in this case, it was not open to the husband to bring a further application for alteration of property interests.

In December 2016 the WA Supreme Court of Appeal handed down the decision of FDR v JDL [No 2] WASCA 231. At first instance the Magistrate made Orders pursuant to section 205ZG of the Act.

The WA Supreme Court of Appeal, constituted by Newnes JA, Murphy JA and Chaney J, found that the Order made by the Magistrate finally disposed of the proceedings and the WA Supreme Court of Appeal went on to entertain the appeal. This decision did not refer to the earlier decisions of the WA Supreme Court of Appeal in CDW v LVE (supra) or MCG v JM (supra).

One may question whether the appellate pathway from an Order made by a Magistrate dismissing an application made pursuant to section 205ZH of the Act is to the Family Court of Western Australia in accordance with the decision of MCG v JM (supra), or, in light of the more recent decision of the WA Supreme Court of Appeal, FDR v JDL [No 2] (supra), the appellate pathway lies to the WA Supreme Court of Appeal. In other words, if an Order made pursuant to section 205ZG is final in nature, does it follow that an Order made pursuant to section 205ZH, a section which is only enlivened by a section 205ZG Order having been made, is also final.

Dianne Caruso Associate   E: dianne.caruso@kimwilson.com.au

 

 

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