CDW v LVE

[2015] WASCA 247

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CDW -v- LVE [2015] WASCA 247

CORAM:   MARTIN CJ

BUSS JA
MITCHELL J

HEARD:   12 AUGUST 2015

DELIVERED          :   4 DECEMBER 2015

FILE NO/S:   CACV 140 of 2014

BETWEEN:   CDW

Appellant

AND

LVE
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :ANDREWS M

Citation  :CDW and LVE [2014] FCWAM 244

Catchwords:

Family law - Appeals - Jurisdiction of Court of Appeal - Whether orders appealed from were final or interlocutory - Orders did not finally determine rights of parents in relation to parenting orders

Family law - Rule in Rice and Asplund - Whether the magistrate misdirected herself as to the correct test - Whether purported change in circumstances sufficient to enliven rule - Turns on own facts

Legislation:

Family Court Act 1997 (WA), s 36, s 39, s 66A, s 66C, s 89, s 209A, s 210, s 210A, s 210AA, s 211
Family Law Act 1975 (Cth), s 65D, s 94AA, s 94AAA
Family Law Regulations 1984 (Cth), reg 15A

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Dr A F Dickey QC

Respondent:     Ms G M Anderson

Solicitors:

Appellant:     Millsteed Grasso

Respondent:     DCH Legal Group

Case(s) referred to in judgment(s):

Bienstein v Bienstein [2003] HCA 7; (2003) 30 Fam LR 488

Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246

CDJ v VAJ (1998) 197 CLR 172

CDW and LVE [2012] FCWA 123

CDW and LVE [2014] FCWAM 244

DL & W [2012] FamCAFC 5

F & C & Child Representative [2004] FamCA 568

In the Marriage of D and Y (1995) 18 Fam LR 662

In the Marriage of Emamy and Marino (1994) 18 Fam LR 44

In the Marriage of H and P J Tudor (1991) 15 Fam LR 165

In the Marriage of L (1989) 15 Fam LR 157

In the Marriage of Rice and Asplund (1978) 6 Fam LR 570

King & Finneran [2001] FamCA 344

Licul v Corney [1976] HCA 6; (1976) 180 CLR 213

Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1

Reid & Lynch [2010] FamCAFC 184

Sheill & McMurr (No 2) [2014] FamCAFC 134

SPS & PLS [2008] FamCAFC 16

Vadisanis & Vadisanis [2013] FamCAFC 90

MARTIN CJ: 

Summary

1. The appellant (the father) and the respondent (the mother) have a daughter who was born on 28 February 2005.  They have been unable to agree upon the parenting arrangements relating to their child.  The father first commenced proceedings in relation to those arrangements in December 2006, before the child was two years old.  Because the father and the mother have never been married, those proceedings, and this appeal, are governed by the Family Court Act 1997 (WA) (the Act), rather than the Family Law Act 1975 (Cth) (the FLA). However, the substantive provisions of the Act with respect to parental responsibility are identical to the corresponding provisions in the FLA.

2. The parenting proceedings were heard over 12 sitting days in June and September 2011, and in August 2012.  Because of the illness of the judge who conducted the hearings in 2011, the hearing continued before a different judge in August 2012.  That judge delivered reasons for the orders which she made with respect to parental responsibility in December 2012.[1]

   [1] Although those reasons were slightly amended in January 2013.

3. In May 2014, the father commenced proceedings in which he sought a number of changes to the orders with respect to parenting arrangements that had been made in December 2012.  He asserted that there had been changes in two material circumstances since the orders were made in 2012, and that those changes in circumstances required reappraisal and amendment of those orders.  That application came before a magistrate.  Directions were made for the determination of the question of whether the changes in circumstances asserted by the father were sufficient to justify the re‑determination of the parenting arrangements.  After receiving evidence and hearing argument on that question, the magistrate determined that the changes were not sufficient to justify re‑determination of the parenting arrangements.[2]  The father appeals from that decision.  For the reasons which follow, this court has no jurisdiction to entertain that appeal.  However, in case a different view is taken elsewhere with respect to the jurisdiction of this court, the father's appeal should be dismissed in any event because it lacks merit.

   [2] CDW and LVE [2014] FCWAM 244.

The decision of the judge

1. It is convenient to start with a brief review of the reasons given by the judge at the time the parenting orders were made[3] and which the father subsequently applied to vary.

   [3] CDW and LVE [2012] FCWA 123 ('Reasons').

2. There is no doubt that the judge was well aware of the issues arising from the father's work offshore on a fly‑in fly‑out basis.  In the first paragraph of her reasons, she observed:[4]

   This case highlights the problems which occur when a parent, who wishes to be substantially involved in the life of a child, is a shift worker who spends significant periods of time offshore or in a remote location.

   [4] Reasons [1].

3. The judge's reasons then identify the two parenting options proposed by the father.  The first assumed that the father would live permanently in Perth, and eschew any employment opportunities in the mining sector.  The second option assumed that he was working on a fly‑in fly‑out roster which would require him to be absent from Perth from time to time.  The trial judge records that the mother's proposals were also designed to accommodate the fact that the father may obtain work in the mining sector according to what is known as 'a Norwegian roster'.[5]  A Norwegian roster involves a 15‑week cycle in which the father would work away from Perth for three weeks, return to Perth for three weeks, work away for three weeks, and then return to Perth for six weeks.[6]  It is unnecessary to set out the details of the various alternative proposals presented by the parties.

   [5] Reasons [22].

   [6] Reasons [37].

4. The judge noted that the father commenced working on a roster away from Perth in about 2004 and continued to engage in offshore work in the mining industry as an industrial chemist until he was retrenched shortly prior to the hearing.[7]  She further noted that the father's evidence was to the effect that he was seeking employment in the mining industry, which would involve work on a fly‑in fly‑out roster, unless orders were made in accordance with his first option, in which case he would live permanently in Perth.[8]

   [7] Reasons [28].

   [8] Reasons [28].

5. The judge identified the primary issues between the parties, and then addressed the evidence adduced in relation to those issues, including the evidence of the single expert, Dr Watts.  In recounting the evidence given by Dr Watts, the judge referred to the views he expressed with respect to techniques that could be adopted to deal with the temporary absence of the father from Perth if the father was working on a fly‑in fly‑out roster.

6. The judge noted that s 66A of the Act required her to regard the best interests of the child as the paramount consideration when deciding whether to make a particular parenting order. She observed that s 66C of the Act requires a court to consider the matters specified in that section and which are characterised as either primary considerations or additional considerations in making a determination as to what is in the best interests of the child. The judge specifically dealt with each of the matters identified in s 66C of the Act in her reasons. In that context, the judge recounted evidence given by the father in relation to changes which had occurred in his fly‑in fly‑out roster, and which had affected his capacity to spend time with the child.[9]  However, she considered that the focus of the father's arrangements with respect to time spent with the child was quantitative not qualitative, and failed to appreciate the effect which his proposals might have upon the child.[10]  In the same context, the judge noted the mother's evidence to the effect that changes to the father's roster had meant a number of applications to the court for changes to the arrangements for the father to see the child, and noted the mother's submission that what was required was predictability and certainty.

   [9] Reasons [147].

   [10] Reasons [144].

7. In her reasons, the judge also reviewed and assessed the effect which each of the parties' proposals would have if the father was re‑engaged to work on a Norwegian roster.

8. In her reasons, the judge recounted a number of incidents which, although they might appear to be trivial, were indicative of what she described as 'the myopic view or disproportionate reaction to matters the father perceives may impact on his relationship with [the child].'[11]

   [11] Reasons [170].

9. The judge specifically found that both parents, and more particularly, the child, needed the litigation to come to an end, and for there to be certainty and predictability in relation to the arrangements for the child.  In that context, she expressed the wish that the orders which she proposed would achieve finality.

10. In the context of considering the primary considerations specified in s 66C, the judge observed that in her reasons she had 'addressed difficulties posed by the potential for the father to return to work on a fly‑in, fly‑out basis, which may involve a Norwegian or other type roster'.[12]

    [12] Reasons [194].

11. The portion of the reasons which follow this observation specifically address the effect which the father's return to a fly‑in fly‑out roster might have upon the orders the judge proposed to make.  In that context she observed:[13]

    While I accept the mother's proposal affords her predictability and convenience, I have determined that, in the event the father is engaged in working on a roster, he should spend such time as he has available in Perth with the child commencing either mid-week or weekend, regardless of his previous time with the child, thereby maximising the time he can spend with her.  I accept that this arrangement will not give the mother the complete predictability or certainty she may wish, but I find having regard to [the child's] best interests, the mother's convenience in respect of mid‑term time must give way to enabling the father to have the maximum time he is in Perth under the mother's proposed regime with the child. 

    In so finding, I am aware that in the past the father has had unexpected roster changes over which he has no control and the parties have been in dispute about when he should exercise time to be spent with [the child].  I have endeavoured to balance each party's needs in this respect in the orders I propose.

    I am also satisfied that the telephone contact proposed by Dr Watts, and substantially adopted by the mother in the mother's Minute is appropriate.  It gives certainty and predictability to the child.  I propose however to add a provision for electronic or Skype contact if the mother has such a facility.  It will make [the child's] electronic contact with the father more meaningful.  I accept it is dependent upon him being able to access such a facility from a remote location.

    [13] Reasons [200] ‑ [202].

12. Further, in expressing her conclusions, the judge observed:[14]

    I am satisfied that, as the mother has the superior capacity to provide for [the child's] best interests, that she should primarily reside with her mother, regardless of whether the father works away from Perth on a Norwegian, or other style of roster, or remains living in Perth.

    …

    I am satisfied therefore it would not be appropriate to make an order for the parties to have equal share[d] parental responsibility, as to do so would not be in [the child's] best interests.  She is likely to be exposed to ongoing conflict between her parents over important decisions about her life, and that cannot be in her best interests.  I accept decisions may have to be made in the father's absence if he is away on a Norwegian style roster in a remote location.

    [14] Reasons [210], [215].

13. A little later in her reasons, the judge observes that it was not in the best interests of the child to live in an equal shared parenting arrangement, at least in part because such an arrangement would not be practicable if the father again took up shift work as he proposed to do.[15]

    [15] Reasons [225].

14. In her conclusions, the judge observed:[16]

    While difficulties about care arrangements may have been possible to resolve in a satisfactory manner had the parties lived and worked in close proximity to each other, the disputes about care arrangements have been exacerbated by reason of the father's employment on a so called 'Norwegian roster'.  Although the father is not presently working on such a roster, it is his intention to return to like employment as he has done for a number of years in the past.

    Ultimately, the evidence led to a finding that the child's best interests are served by her living primarily with the mother, and spending such time as can be practically organised with her father without disrupting unduly her stability and predictability of routine.

    Because of the parties' inability to communicate in any effective manner, it is clear that, to avoid conflict in the future, it is in the child's best interests that the mother assume sole parental responsibility for her, including making long‑term decisions about the child's education.

    [16] Reasons [247] ‑ [249].

15. After dealing with costs issues, the judge set out the orders which she proposed to make, and in fact made.  They are very detailed and comprise 31 paragraphs occupying five pages of text.  It is not necessary to set out the orders in detail.

The magistrate's decision

1. In the introduction to her reasons, the magistrate observes that the question that she was addressing was whether changes which had occurred since the parenting orders were made in December 2012 were sufficient 'to allow the matter to proceed again through the court process'.[17]

   [17] CDW and LVE [2014] FCWAM 244 [4].

2. The magistrate noted that the father had gained employment as a production technician in the mining industry which required him to work on a fly‑in fly‑out roster which, at the time of his application, was two weeks on / two weeks off / two weeks on / four weeks off.  I digress to observe that this roster is the same ratio of time on and off as the Norwegian roster but, of course, operates on different time intervals.[18] 

   [18] The Norwegian roster requires a worker to work six weeks out of 15, whereas the father's roster requires him to work four weeks out of 10.  Both rosters require workers to work 40% of each cycle.

3. In the course of her reasons, the magistrate referred to a number of previous cases relating to the principles governing the identification of the circumstances in which the court would review parenting orders previously made.  The magistrate summarised the principles which she extracted from the authorities which had been cited to her in these terms:[19]

   •The best interests of the child remain throughout the paramount consideration;

   •It is usually in the interests of the child that the orders made by the Court are treated as determining the dispute and be given the necessary support;

   •The proper administration of justice requires orders not be changed unless there [are] sufficient and weighty new facts and circumstances which throw sufficient doubt on the desirability of continuing the arrangements brought about by the previous order;

   •The Court should be reluctant to assume jurisdiction too soon after there has been a full and adequate hearing;

   •The change needs to be significant or substantial - a matter of importance, of consequence, of real worth, of ample or considerable amount, quantity or size more than which would occur by the passage of time;

   •The change must be such [that] a Court would be left in no doubt that it was necessary to re-litigate the parenting issue; and

   •The change or fresh circumstance must be such that, if taken into account, there is a real likelihood that a change in orders may follow.

   [19] [2014] FCWAM 244 [19].

4. The magistrate then addressed the first changed circumstance which the father asserted justified revisiting the parenting orders - namely, the fact that the mother had shifted residence with the child to a suburb more distant from the suburb in which the father resided.  The magistrate concluded that this change in circumstance did not warrant reopening the parenting orders which had been made and that conclusion is not challenged on appeal.

5. The magistrate then addressed the second change in circumstance which the father asserted justified revisiting the parenting orders previously made, that circumstance being his engagement on a fly‑in fly‑out roster which was not identical to the Norwegian roster which had been the subject of evidence before the judge.  The magistrate summarised the father's submissions in relation to that change in circumstance in these terms:[20]

   •The effect of his current roster upon the time currently ordered. As stated, he believes the combination of these two elements will result in him having at least 15% less time with [the child] overall. He says this is not in the child's best interests given their relationship and what time [the child] has spent with him over many years.

   •If the child was to have less time with him, [the child] would miss out on various different activities in which he engages with her and he refers to these in his evidence.

   •The father also says that he has concern about [the child's] welfare if she spends less time with him because he is the person who assists her with her school work, takes particular care as to her health and takes her to the doctor, and always makes sure she attends school. All of those things he says are lacking in the care the mother gives [the child].

   •The father argues that the type of roster he now has was not the type contemplated by the trial Judge when she made the orders. The father had previously worked on a Norwegian roster which presents a different configuration of days on and off. With the current roster there is a different effect and it does not sit well with the current orders.

   •The father submitted that the amount of time in total that he was now proposing - although differently configured - would result in [the child] spending the same amount of time with him.

   •His counsel also argued that he does not want a long trial, he does not want a re-hearing of all of the issues but only a consideration of the changes proposed because of his work roster.

   [20] [2014] FCWAM 244 [40].

6. The magistrate did not consider that the father had provided evidence of sufficient change to warrant reopening the parenting orders made by the judge.  She gave essentially four reasons for that conclusion:

   (a)the judge had fully considered the possibility that the husband may regain employment on a fly‑in fly‑out basis and had developed orders which took account of that possibility, irrespective of whether the father was engaged to work on a Norwegian roster or some other roster;

   (b)the magistrate did not accept that the lessening of time between the child and the father would have an effect on the father's relationship with the child, given that the judge had concluded that the father failed to appreciate that his relationship with his child was most significantly affected by the quality of the time which they spent together, rather than the quantity of time;

   (c)it was important to prevent the litigation continuing, which was a significant factor taken into account by the judge when she made the orders that she did; and

   (d)the magistrate did not accept the proposition that the hearing would only be short - rather, in her view, if the father was allowed to relitigate issues with respect to what was in the child's best interests, it would result in the necessity to revisit many of the matters that had already been covered over the 12 previous days of hearing, and that would take significant time and money.

1. The magistrate dismissed the father's application to vary the parenting orders previously made.

The jurisdictional issue

1. Part 7 of the Act deals with appeals from the courts exercising the jurisdiction to which reference is made in the Act. The Act generally, and pt 7 of the Act in particular, distinguishes between federal jurisdiction and non-federal jurisdiction. Conformably with the Constitution of the Commonwealth of Australia, s 210 of the Act provides that the appeal provisions of the FLA apply in respect of federal jurisdiction.

Federal and non-federal jurisdiction

1. Section 36(2) of the Act confers a range of non-federal jurisdiction upon the Family Court of Western Australia, including jurisdiction to make parenting orders in respect of any child whose parents were not married to each other at the time of the birth of the child or subsequently. Section 39 of the Act confers the same non-federal jurisdiction (except for jurisdiction under the Adoption Act 1994 (WA) or the Surrogacy Act 2008 (WA)) upon the Magistrates Court of Western Australia, constituted by a family law magistrate, or constituted by a magistrate sitting at a place outside the metropolitan region. As the father and the mother in this case have never been married, the father's application to vary parenting orders made in respect of the child involved the exercise of non-federal jurisdiction. The application came before the Magistrates Court constituted by a family law magistrate.

Appeals from decisions of the Magistrates Court in non-federal jurisdiction

1. Section 210A of the Act provides, relevantly:

   (1)This section applies only if the Magistrates Court is constituted by a family law magistrate.

   (2)In respect of the non-federal jurisdictions of the Magistrates Court an appeal lies from a decree of the court to the Court of Appeal, unless the decree is an interlocutory order.

   (3)Subsection (2) has effect subject to section 210AA.

   …

2. Section 209A of the Act defines 'decree' to include, relevantly, 'an order dismissing an application', and therefore applies to the order made by the magistrate in this case.

3. Section 210AA of the Act provides:

   An appeal does not lie under section 210A from a decree prescribed by the regulations except by leave of -

   (a)a single judge (who need not be a member of the Court of Appeal); or

   (b)the Court of Appeal.

4. Regulations made under the Act do not prescribe any decree or class of decree for the purposes of s 210AA of the Act.

5. So, the jurisdiction conferred upon this court by s 210A of the Act is enlivened if, and only if, the following conditions are satisfied:

   (a)the appeal is brought from a 'decree'; and

   (b)the decree was made by the Magistrates Court; and

   (c)the decree was made in the exercise of non-federal jurisdiction; and

   (d)the Magistrates Court was constituted by a family law magistrate; and

   (e)the decree is not an interlocutory order.

6. The Act also provides the capacity to condition the right of appeal conferred by s 210A upon the grant of leave by the promulgation of regulations prescribing a class or classes of decree in respect of which leave to appeal is required, although that capacity has not been exercised.

7. Section 211 of the Act provides, relevantly:

   211.  Non‑federal jurisdictions

   (1)Subsection (2) does not apply if the Magistrates Court is constituted by a family law magistrate, unless the decree is an interlocutory order and -

   (a)the Family Court of Western Australia has granted leave to appeal; or

   (b)the decree is a decree prescribed in the regulations for the purposes of this paragraph.

   (2)In respect of the non‑federal jurisdictions of the Magistrates Court an appeal lies from a decree of the court to the Family Court of Western Australia and upon any such appeal the Court - 

   (a)must proceed by way of a re‑hearing, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the Magistrates Court; and

   (b)may make such decrees as it thinks fit, including a decree affirming, reversing or varying the decree the subject of the appeal.

   …

8. So, these paragraphs of s 211 confer appellate jurisdiction upon the Family Court of Western Australia if, and only if, the following conditions are satisfied:

   (a)the appeal is from a 'decree'; and

   (b)the decree was made by the Magistrates Court; and

   (c)the decree was made in the exercise of non-federal jurisdiction; and

   (d)the Magistrates Court was not constituted by a family law magistrate, unless the decree was an interlocutory order and:

   (i)the Family Court of Western Australia has granted leave to appeal; or

   (ii)the decree is a decree prescribed in the regulations for the purposes of s 211(1) of the Act.

9. Although s 211 creates the capacity to confer appellate jurisdiction upon the Family Court of Western Australia in respect of interlocutory orders made by the Magistrates Court constituted by a family law magistrate without requiring the grant of leave to appeal by the promulgation of regulations prescribing a decree or classes of decree in respect of which leave to appeal from an interlocutory order is not required, that capacity has not yet been utilised in the regulations made under the Act.

10. In summary, the appellate jurisdiction conferred upon this court by s 210A of the Act and upon the Family Court of Western Australia by s 211 of the Act each depend upon the appeal being brought from a decree of the Magistrates Court in the exercise of non-federal jurisdiction. The identification of the court to which the appeal lies will depend upon:

    (a)whether the Magistrates Court was constituted by a family law magistrate; and

    (b)whether the decree was an interlocutory order.

11. If the Magistrates Court was constituted by a family law magistrate, and the decree is not an interlocutory order, an appeal lies to this court.  Although the legislation confers the capacity to condition such appeals upon the grant of leave, that capacity has not been utilised to date.  If the decree is an interlocutory order, an appeal lies from the Magistrates Court constituted by a family law magistrate to the Family Court of Western Australia, subject to the grant of leave to appeal by the Family Court of Western Australia.  Although the legislation confers the capacity to exclude a class or classes of interlocutory orders from the requirement that leave to appeal be granted, that capacity has not been utilised to date.

12. If the Magistrates Court is not constituted by a family law magistrate, an appeal lies to the Family Court of Western Australia, without any requirement for the grant of leave to appeal.

Application to this case

1. Turning now to apply the appellate structure created by pt 7 of the Act to the circumstances of this case, as the Magistrates Court was constituted by a family law magistrate and exercised non‑federal jurisdiction, the identification of the court having jurisdiction to entertain an appeal from her decision turns upon the question of whether that decision was 'an interlocutory order'. If the decision of the magistrate was not 'an interlocutory order', an appeal lies to this court, and because the power conferred by s 210AA of the Act has not been exercised, leave to appeal is not required. Conversely, if the decree of the magistrate was 'an interlocutory order', an appeal lies to the Family Court of Western Australia and is conditioned upon the grant of leave by that court, because the power conferred by s 211(1)(b) to exclude a class or classes of decree from the requirement that leave be granted has not yet been exercised.

2. So, in short, the jurisdiction of this court to entertain the father's appeal depends upon a determination that the decision of the family law magistrate to dismiss his application to vary the parenting orders made by the judge is not 'an interlocutory order'. However, before addressing that critical question, for reasons which will appear, it is desirable to compare the appellate structure created by the Act with the corresponding appellate structure created by the FLA in respect of decisions of the Magistrates Court of Western Australia in the exercise of federal jurisdiction.

Appeals from decisions of the Magistrates Court of Western Australia in the exercise of federal jurisdiction

1. Section 94AAA(1A) of the FLA provides that an appeal lies to the Family Court of Australia from a decree of the Magistrates Court of Western Australia constituted by a family law magistrate exercising jurisdiction conferred by the FLA. Within the taxonomy of the Act, jurisdiction conferred by the FLA is 'federal jurisdiction'.

2. However, s 94AAA(2) provides that subsection (1A) has effect subject to s 94AA. That section provides, relevantly, that leave to appeal is required in respect of appeals from a prescribed decree of the Magistrates Court of Western Australia constituted by a family law magistrate. Regulation 15A of the Family Law Regulations 1984 (Cth) provides that for the purposes of s 94AA of the FLA, a prescribed decree is (amongst other things):

   An interlocutory decree (other than a decree in relation to a child welfare matter).

   Regulation 15A defines 'child welfare matter' to mean a matter relating to:

   (a)the person or persons with whom a child is to live; or

   (b)the person or persons with whom the child is to spend time or communicate; or

   (c)any other aspect of parental responsibility, within the meaning of pt VII of the [FLA], for a child.

3. The father's application to vary the terms of the parenting order made by the judge falls within the meaning of 'child welfare matter' for the purposes of reg 15A. It follows that if the father and the mother had ever been married, the father would have had a right of appeal to the Family Court of Australia from the magistrate's decision to refuse his application irrespective of whether or not that decision was 'interlocutory'. That is because the power to prescribe the class of decrees in respect of which leave to appeal is required conferred by s 94AA of the FLA has been exercised in a way which excludes the requirement for leave in respect of decrees relating to child welfare matters, even if those decrees are 'interlocutory'. By contrast, the equivalent power conferred by s 211(1)(b) of the Act has not been exercised so as to exclude interlocutory decrees relating to child welfare matters from the requirement that leave be granted. Of course, responsibility for determining whether the power conferred by s 211(1)(b) of the Act should be exercised by promulgating regulations which exclude the requirement for the grant of leave in respect of interlocutory orders relating to child welfare matters, thereby bringing the structure for appeals from the Magistrates Court of Western Australia constituted by a family law magistrate in the exercise of non-federal jurisdiction into line with the appellate structure created by the FLA with respect to appeals from the Magistrates Court of Western Australia constituted by a family law magistrate in the exercise of federal jurisdiction, lies with the executive government of Western Australia, rather than the legislature.

Is this appeal from 'an interlocutory order'?

1. The Act does not define or otherwise provide expressly for the meaning to be given to the expression 'an interlocutory order' when used within that Act. However, at the time the Act was passed, the legal principles governing the distinction between final and interlocutory orders were well established by a series of decisions in the High Court. For reasons which I will develop, there is nothing in the words or structure of the Act which would suggest that the legislature did not intend that those established principles should be applied to govern the meaning to be given to that phrase when used in the Act. To the contrary, when account is taken of the apparent legislative intention that the appellate structure created by the Act should correspond to the equivalent structure created by the FLA, there is every reason to suppose that the legislature intended that the expression bear its established meaning.

Licul v Corney[21]

[21] Licul v Corney [1976] HCA 6; (1976) 180 CLR 213.

1. In Licul v Corney the competence of an appeal brought without leave to the High Court depended upon the question of whether the decision under appeal was interlocutory or final.  If the decision was interlocutory, leave to appeal was required.  The decision under appeal concerned the efficacy of service of initiating process and was made at a time after the applicable limitation period had expired.  Although the plaintiff's difficulties could be overcome by an order extending the time for service, the plaintiff asserted that the prospects of success of an application for an extension of time were so unlikely that the availability of such an order should be regarded as more theoretical than real.

2. In that context, Barwick CJ observed:[22]

   The first question arising from the objection to the competency of the appeal to this Court is whether the order of the Supreme Court was a final order within the meaning and operation of s. 35(1)(a) of the Judiciary Act 1903 (Cth) (as amended). To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties. It is not enough, in my opinion, that by reason of circumstances unconnected with and uncontrolled by the order itself, it may be or become impossible or impracticable to proceed with this action.

   [22] 219 ‑ 220.

3. In the same context, Gibbs J observed:[23]

   The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex & Co v Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Within either of those tests the judgment of the Full Court in the present case is not a final judgment. It does not have the effect of finally disposing of the rights of the parties. It leaves it open - at least in theory - to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be.  [footnotes omitted]

   [23] At 225, Mason J agreeing.

4. The other two members of the court, Stephen and Jacobs JJ, agreed that the objection to competency should be upheld on the basis that the proceedings below had not come to an end.

Carr v Finance Corporation of Australia Ltd (No 1)[24]

[24] Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246.

1. In Carr v Finance Corporation of Australia Ltd, an appeal was brought without leave from a decision refusing to set aside a default judgment obtained following the defendant's failure to file a defence within the time specified.  The respondent objected to the competency of the appeal.  In that context, Gibbs CJ observed:[25]

   The respondent submits that the appeal is incompetent because the judgment appealed from is not a final judgment within s 35 of the Judiciary Act. The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty. The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theroretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.

   In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court's power to grant special leave to appeal.

   I therefore hold that the judgment appealed from is not a final judgment and that the appeal is incompetent. [footnotes omitted]

   [25] At 248.

2. Mason J observed:[26]

   The question remains whether the refusal of an application amounts to a final order, when the practical effect of that order is to preclude the defendant from making another application to set aside the judgment, although in strict law the defendant is free to bring his application, knowing that it will inevitably fail. The present case is a striking example. Naturally the Court of Appeal could not be expected to depart from its earlier decision. Consequently a further application to set aside the judgment is of no value to the appellants. In Hewitt it was very different.

   The choice for the Court is whether it should continue to adopt the traditional classification of orders of this kind as interlocutory because there is the right to make another application and because the order does not deal directly with the rights in contest in the action or whether it should now classify such orders as final when their practical effect is to shut out the defendant from contesting the default judgment.

   Although the second alternative has some attractions, it has the disadvantage that the character of the order (whether it be final or interlocutory) could not be determined on its face, but could only be ascertained after an examination of the grounds on which the application to set aside was made, the grounds on which it was refused and the formation of a judgment as to the impact of the grounds of refusal on the prospects of bringing a second application. The adoption of this approach would bring yet a further complication to the complexities which already bedevil the existence of appeals as of right to this Court.

   The prospect that there could be a steady stream of appeals to this Court from orders on applications to set aside default judgments, if the character of a final order be conceded to them, is by no means an inviting prospect. Even so, I would not shrink from making that concession if it be correct in law so to do, in order to do justice to the parties. However, for the reasons already given, I do not consider it to be a correct approach. It goes without saying, that the unsuccessful party can, in an appropriate case, apply for and obtain special leave to appeal. 

   I would therefore allow the objection to competency.  [footnotes omitted]

   [26] At 256 - 257.

1. Murphy J agreed that the appeal was incompetent for reasons shortly expressed.[27]

Bienstein v Bienstein[28]

[27] At 258.

[28] Bienstein v Bienstein [2003] HCA 7; (2003) 30 Fam LR 488 [25] (McHugh, Kirby & Callinan JJ).

1. These principles were applied more recently in the unanimous decision of the High Court in Bienstein v Bienstein:

   The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success.  [footnotes omitted]

The application of the general principles to this case

1. The application of these well‑established principles to the circumstances of this case is quite straightforward.  The classification of the decision under appeal as either interlocutory or final turns upon the question of whether the order made by the magistrate finally determined the rights of the parties with respect to the parenting orders which will govern the upbringing of the child.  The order will not have that character if it is theoretically possible for the unsuccessful party to make a further application for the same relief, even though such an application may have very little prospect of success.

2. Section 89 of the Act[29] provides that[30] a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.  It follows that 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.

   [29] Which corresponds to s 65D of the FLA.

   [30] Subject to qualifications which are immaterial for present purposes.

The character of parenting orders

1. The principles governing the distinction between interlocutory and final orders have been applied in a number of cases governed by the FLA.[31]  Their application to the circumstances of this case is put beyond doubt when consideration is given to the line of cases in the family jurisdiction which establish that parenting orders can seldom, if ever, be regarded as final orders.  For example, In the Marriage of L,[32] the Full Court of the Family Court[33] held:

   It has become a well-established principle that custody and access orders can never be final orders incapable of change.  Although, as we have said, frequent applications in relation to both custody and access are undesirable, a party should not be deprived of approaching the court for a change in either custodial or access arrangements if such application is in the children's best interests and there are reasonable grounds for doing so.[34]

   [31] For example, see In the Marriage of H and P J Tudor (1991) 15 Fam LR 165; In the Marriage of Emamy and Marino (1994) 18 Fam LR 44; Vadisanis & Vadisanis [2013] FamCAFC 90; Sheill & McMurr(No 2) [2014] FamCAFC 134.

   [32] In the Marriage of L (1989) 15 Fam LR 157.

   [33] Strauss, Baker and Graham JJ.

   [34] At 163 ‑ 164; see also Reid & Lynch [2010] FamCAFC 184 [227] ‑ [239].

2. More recently in Sheill & McMurr (No 2), the Full Court of the Family Court[35] held that it necessarily followed from the appellant's concession that the order under appeal could be varied subject to the principles in Rice and Asplund that the order under appeal was interlocutory in character even if, as a matter of practicality, any subsequent application may be doomed to fail.[36]  The court accepted that 'it may theoretically be possible' for an interim parenting order to be considered final, citing as an example an order that a child is to live in another country.[37]  In this case, it is neither necessary nor appropriate to determine whether there is an exceptional class of parenting orders which can be considered final, and if so to identify the boundaries of that class because on any view, the order dismissing the father's application to vary the parenting orders made by the judge is entirely unexceptional.

   [35] Ainslie-Wallace, Ryan & Kent JJ.

   [36] [53].

   [37] [52].

3. Consistently with the principle enunciated in this line of cases, each of s 89 of the Act and s 65D of the FLA expressly authorise the variation of earlier parenting orders. It follows that a parenting order will not finally determine the rights of the parties in relation to the subject of the order and will therefore be characterised as interlocutory in character unless there is an exceptional class of case in which such an order can be considered as final, as suggested in Sheill & McMurr (No 2), and the case falls within that class. These principles may well explain the terms of reg 15A of the Family Law Regulations, which have the effect that decrees in relation to child welfare matters are exempted from the requirement that leave to appeal be granted in respect of appeals from interlocutory decrees - otherwise leave to appeal would be required in all (or perhaps almost all) appeals from orders in child welfare cases.

The parties' submissions

1. On behalf of the father, it is submitted that the general principles governing the distinction between final and interlocutory orders cannot apply to govern the meaning to be given to the expression 'an interlocutory order' in s 210A of the Act because the character of parenting orders is inherently interlocutory. There are at least three reasons why that submission must be rejected.

2. First, neither s 210A nor any other provision of pt 7 of the Act draws any distinction between parenting orders and other decrees subject to appeal under pt 7. The inherent character of part only of the range of jurisdiction to which pt 7 of the Act applies provides no sound basis for giving an expression which applies to the entire range of jurisdiction to which the part applies some meaning other than its established legal meaning.

3. Second, the submission ignores the cases to which I have referred in which it has been held that the general principles governing the distinction between final and interlocutory orders apply to family law proceedings, and in particular, to proceedings with respect to parenting orders.

4. Third, given the apparent correspondence between the appellate structures created by the Act in relation to non-federal jurisdiction, and the structures created by the FLA in relation to federal jurisdiction,[38] the approach taken in reg 15A of the Family Law Regulations, which exempts all decrees in relation to child welfare matters from the requirements which would otherwise apply to interlocutory decrees, is consistent with an assumption that such decrees would generally be characterised as interlocutory. As the appellate structures relating to orders made in the exercise of federal jurisdiction were in place before the enactment of s 210A of the Act, they provide guidance as to the proper construction and effect of that section.

   [38] See the next paragraph.

5. On behalf of the father, reliance is also placed upon the explanatory memorandum relating to the Family Legislation Amendment Bill 2006 (WA) which inserted s 210A into the Act. That memorandum contains the following statement:

   The Bill brings the Family Court Act 1997 of Western Australia up to date with the Family Law Act 1975 of the Commonwealth.  It incorporates those amendments made to the Family Law Act 1975 (Cth) by the Commonwealth Parliament in the last few years … As a result of this legislation those Western Australians in a de facto relationship, and their ex nuptial children, will be in the same position as their married counterparts and the children of those marriages.

6. The father submits that this intention would be defeated if the expression 'interlocutory order' is given its ordinary meaning, because reg 15A of the Family Law Regulations has the effect that leave to appeal from a decree of a family law magistrate in the exercise of federal jurisdiction with respect to a child welfare matter is not required whether the decree is an interlocutory order or not, whereas under s 211 of the Act, leave to appeal is required in respect of all appeals from interlocutory orders made by family law magistrates in non-federal jurisdiction, including decrees in child welfare matters.

7. This submission must also be rejected. It may be accepted that the appellate structure with respect to appeals from decrees made by family law magistrates in the Magistrates Court of Western Australia in the exercise of non-federal jurisdiction created by pt 7 of the Act replicates the appellate structures created by the FLA in respect of decrees made by family law magistrates in the Magistrates Court of Western Australia in the exercise of federal jurisdiction. Each of s 210AA and s 211 of the Act and s 94AA of the FLA create a structure under which the class of decisions in respect of which leave to appeal is required is to be determined in regulations promulgated under the relevant Act. Section 211 of the Act provides that leave to appeal is required in respect of interlocutory orders unless the order is of a kind prescribed in the regulations made under the Act. Section 94AA of the FLA provides that leave to appeal is required in respect of a prescribed decree of the Magistrates Court of Western Australia. That power has been used to prescribe all interlocutory orders other than orders in relation to child welfare matters.

8. Section 211 of the Act empowers the executive government of Western Australia to achieve precisely the same appellate structure in relation to the decisions of family law magistrates of the Magistrates Court of Western Australia in the exercise of non-federal jurisdiction as currently applies to appeals from orders of those magistrates in the exercise of federal jurisdiction, insofar as leave to appeal is required, by prescribing decrees with respect to child welfare matters for the purposes of s 211(1)(b) of the Act. The fact that the executive government of Western Australia has not yet taken this course does not detract from the consistency of the legislation enacted by the State and Commonwealth parliaments, nor does it shed any light upon the proper construction to be given to the terms used in those enactments.

9. On behalf of the mother it is submitted that the order under appeal should be characterised as final because it finally determined the rights asserted by the father in respect of the application which he brought to vary the parenting orders previously made.  That submission is, however, directly contrary to the principles established in the High Court in the line of cases to which I have referred, and impermissibly focuses attention upon the form of the proceeding before the court, rather than upon the substantive effect of the orders made by the court.  So, for example, in Sheill & McMurr (No 2), the order under appeal undoubtedly determined the rights of the parties in relation to the application for those orders, but was, nevertheless, characterised as interlocutory because it did not finally determine the rights of the parents in relation to the parenting orders which would govern the upbringing of their child.

Conclusion in relation to jurisdictional issue

1. For these reasons, there can be no doubt that the order the subject of this appeal was an interlocutory order made by a family law magistrate in the Magistrates Court of Western Australia in the exercise of non-federal jurisdiction. Because the order was interlocutory, no appeal lies to this court. Any appeal from that order lies to the Family Court of Western Australia under s 211 of the Act, and unless and until a class or classes of decree is prescribed in regulations made under the Act, it can only be brought with leave. This appeal is therefore incompetent, and must be dismissed.

2. However, against the contingency that a different view is taken elsewhere with respect to this court's jurisdiction, and in deference to the full argument which was presented with respect to the merits of the appeal, I will set out the conclusions which I would have reached had the appeal been within jurisdiction.

The substantive merits of the appeal

1. There are three grounds of appeal.  It is unnecessary to set them out verbatim.  In essence the grounds assert that:

   (a)the magistrate misdirected herself by expressing the view that a change in circumstances must be 'significant or substantial' in order to justify relitigating parenting orders previously made, when she should have held that what was required was a sufficient change in circumstances to justify a review of the existing orders for the benefit of the child;

   (b)the magistrate erred by focusing attention upon the judge's intention that the orders which she made would cover any future fly‑in fly‑out roster when focus should instead have been directed to the effect which the father's present fly‑in fly‑out roster would have upon his contact with the child under the existing orders; and

   (c)the magistrate failed to take into account the objects of pt 5 of the Act and especially the object of ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.

2. The written submissions filed in support of the appeal do not develop each ground of appeal separately.  In oral submissions, counsel for the father contended that the appellant's basic submission was that the magistrate applied the wrong test by inquiring whether the existing orders were made in contemplation of something like the father's present work roster, and not whether there had been sufficient change in circumstances since the orders were made (that is, the second ground I have enunciated above).  Counsel emphasised that the appeal was strictly a matter of law and no challenge was made to the exercise of discretion.  The appeal was said to be brought on the simple basis that the magistrate wrongly applied the law because she did not apply the right test.[39] 

   [39] Appeal ts 6.

3. Counsel on behalf of the father expressly disavowed any assertion of factual error by the magistrate,[40] and in that context accepted that the magistrate had proceeded on the basis that the father asserted that the effect of his re‑engagement on a fly‑in fly‑out basis was that he would spend 15% less time with the child.[41]

   [40] Appeal ts 12.

   [41] Appeal ts 13.

The previous cases

Rice & Asplund[42]

[42] In the Marriage of Rice and Asplund (1978) 6 Fam LR 570.

1. The first major case addressing the principles governing the circumstances in which a court would revisit parenting orders previously made appears to be the decision of the Full Court of the Family Court in Rice & Asplund.  In that case, Evatt CJ[43] observed:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for change is an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …[44]

   [43] Pawley SJ & Fogarty J agreeing.

   [44] At 572.

2. The manner in which these principles are to be applied is illustrated by the approach which Evatt CJ took to the decision of the judge at first instance in Rice & Asplund.  Her Honour observed:

   How did his Honour approach the case in regard to the principles that I have discussed?  … [H]is Honour said:

   … [C]ustody applications cannot be allowed to be recommenced without some significant change occurring after the original hearing.  In this case there are some significant changes, in that the wife has now stabilised her accommodation, has married Mr Asplund and J was to commence schooling which made the previous access orders unworkable and unrealistic.  Whether the wife was responding to the husband's prior application, or whether she believed such changes merited her application, I believe her application is justified on both counts.

   …

   [His Honour] has approached the issue in my view on the basis of the need to establish a significant change.  There is no error in this approach.

King & Finneran[45]

[45] King & Finneran [2001] FamCA 344.

1. The so-called rule in Rice & Asplund was considered in the context of an appeal from a magistrate in King & Finneran.  The appellant complained that the magistrate had erred by setting the bar too high with respect to the degree of change which would be required to justify reviewing parenting orders previously made.  In particular, the husband asserted that the magistrate had erred by referring to the requisite change as having to be 'significant' or 'substantial', and referred to dictionary definitions of those terms.  In that context, Collier J observed:[46]

   Clearly, both words indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.

   The words in any event are not words of necessarily strict dictionary definition. In The Marriage of D v Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow. (original emphasis)

   [46] King & Finneran [49] ‑ [50].

2. These observations were cited with approval by the Full Court of the Family Court of Australia in F & C & Child Representative.[47]  The Full Court did, however, suggest that there may be a need to add a caveat to the view expressed by Collier J to the effect that it may be sufficient to allow a fresh application to proceed if there was 'a real likelihood that change may follow'.  The Full Court drew attention to the decision of the High Court in CDJ v VAJ[48] in which McHugh, Gummow and Callinan JJ referred to the need for caution in the exercise of the discretion to admit further evidence in the following terms:[49]

   The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare.  In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations.  So too the public and private interests in the finality of litigation must be given some weight even in cases of this kind.  The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.

   [47] F & C & Child Representative [2004] FamCA 568 [44] per Kay, Warnick & O'Ryan JJ.

   [48] CDJ v VAJ (1998) 197 CLR 172.

   [49] CDJ v VAJ [118].

1. In F & C & Child Representative, the Full Court of the Family Court pointed out that the same members of the High Court observed later in their reasons in CDJ v VAJ that:[50]

   New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child.

   [50] CDJ v VAJ [148].

2. Their Honours went on to observe that in all but exceptional cases, a new hearing would only be ordered if the admission of further evidence would clearly have led to a different conclusion.

SPS & PLS[51]

[51] SPS & PLS [2008] FamCAFC 16.

1. SPS & PLS is another case in which the so-called 'rule in Rice & Asplund' was considered in the context of an appeal from a federal magistrate.  Warnick J referred to the various terms in which the rule in Rice & Asplund had been expressed in previous cases, and to the tendency to use shorthand descriptions of the rule in some of those cases.  In that context his Honour observed:[52]

   Although I do not suggest that, when judgments of the court in which the rule is discussed are read in full, the rule is in any case inaccurately or even insufficiently expressed, sometimes 'shorthand' descriptions of the rule are used and are then taken up by others in later cases. Some phrases used seem to better direct attention to the essential question than others. For example, the phrase used by Nygh J in McEnearney (supra), that a court should discourage a parent from coming back to court where there 'is really no startling new circumstance' focuses attention on the character of the circumstance itself. Similarly, terms such as 'a substantial change in circumstance since the making of an existing order', as used by the Full Court in D and Y (supra), may tend to focus attention on the character of a particular event or events. The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.

Marsden & Winch[53]

[52] SPS & PLS [84].

[53] Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1.

1. The issue was addressed again by the Full Court of the Family Court of Australia in Marsden & Winch.  The previous authorities were extensively reviewed in joint reasons for decision.[54]  The Full Court expressly agreed with the conclusion reached by Warnick J in SPS & PLS that:[55]

   [W]hen the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination 'on the merits'. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

   [54] Marsden & Winch [40] ‑ [56] per Bryant CJ, Finn & Cronin JJ.

   [55] Marsden & Winch [47].

2. Their Honours went on to observe:[56]

   [56] Marsden & Winch [48] ‑ [50].

   In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.

   However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the 'rule' in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.

   Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:

   (1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.

   (2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   (3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.

DL & W[57]

[57] DL & W [2012] FamCAFC 5.

1. The observations of the Full Court in Marsden & Winch were cited with approval more recently by a Full Court of the Family Court of Australia differently constituted in DL & W.  The manner in which those principles were applied in that case is revealed by the conclusions expressed by the court in relation to the appeal before the court:[58]

   Her Honour adopted a common sense approach to a case in which the only change in the child's life proposed by the father would be for her to spend two, or possibly just one, more nights a fortnight with him during school terms. The importance (or lack thereof) to the child of this proposed change, in circumstances where she already enjoyed a very good relationship with her father, stood to be considered in light of the fact that 'in a few short years' she would be old enough to 'vote with her feet'.

   Any potential benefit to the child associated with spending additional time with one loved parent (and we might note a correspondingly shorter time with another loved parent and siblings) was, in her Honour's view, outweighed by the prejudice associated with yet more litigation. As we have found no appellable error in this approach, the appeal will be dismissed.

   [58] DL & W [105] ‑ [106].

2. Counsel for the appellant did not suggest that any of these cases were wrongly decided or should not be followed.  It is therefore appropriate to apply the principles enunciated in these cases to the grounds of appeal.

Ground 1

1. The fundamental difficulty with ground 1 of the appeal is that it presumes an inconsistency or distinction between assessing whether the asserted change in circumstances was 'significant or substantial', and assessing whether the change in circumstances was sufficient to support the conclusion that relitigating the issue of parenting arrangements would be in the best interests of the child.  The cases to which  I have referred, and the magistrate herself, make the point that the assessment of whether the asserted change in circumstance is 'significant or substantial' is simply part of a composite multi-faceted process for assessing whether the relitigation of parenting arrangements is in the best interests of the child.

2. As I have noted, the magistrate did expressly enunciate the proposition that in order to justify relitigating parenting orders previously made, the change or changes of circumstance needed to be significant or substantial.  However, it is clear from the context in which she made that observation that she regarded those terms as providing a shorthand description or paraphrase of the basic concept embodied in what has been described as the rule in Rice & Asplund.  That is evident from the fact that she paraphrased those terms using precisely the terminology used by Collier J in King & Finneran.  Further, the use of those expressions and associated terminology was expressly approved by the Full Court of the Family Court in F & C & Child Representative, and is consistent with terminology used by the Full Court in D and Y[59] and by Warnick J in SPS & PLS.  The terminology is not inconsistent with the terminology used in any of the more recent decisions on this topic, including Marsden & Winch and DL & W.

   [59] In the Marriage ofD and Y (1995) 18 Fam LR 662.

3. Nor can there be any suggestion that the magistrate considered that the only issue which she was required to address was the question of whether the asserted changed circumstances were significant or substantial.  To the contrary, it is clear from the portion of the magistrate's reasons which I have set out above that she clearly understood that this was merely one aspect of a multi‑faceted process which had to be undertaken in order to determine whether the best interests of the child would be enhanced by permitting the relitigation of parenting arrangements.

4. Ground 1 proceeds upon a false premise of legal principle and misconstrues the magistrate's decision.  If, contrary to the view I have expressed, this court has jurisdiction to entertain the appeal, this ground should be dismissed.

Ground 2

1. This ground also misconceives the legal principles properly applied in assessing whether the relitigation of parenting arrangements is in the best interests of the child.  The cases to which I have referred make clear that identification of the asserted change or changes in circumstances is a critical step in the necessary process of evaluation and assessment.  Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made.  Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned.  So, for example, in Marsden & Winch the Full Court of the Family Court of Australia held that in order to determine, in a particular case, whether the court should be willing to embark upon another hearing, the court must look at the past circumstances, including the reasons for the decision and the evidence upon which it was based.[60]

   [60] Marsden & Winch [50].

2. That is precisely the course taken by the magistrate in this case.  She correctly concluded that both the parties and the judge had expressly contemplated the prospect that the father may return to work on a fly in / fly out roster, being either a Norwegian roster or some other style of roster, and the judge made orders with precisely that contingency expressly in mind.  The contemplated contingency has now come to pass.  That occurrence cannot be said to be a sufficient change in circumstance, as it was contemplated by the parties and considered by the court in the course of the hearings which preceded the parenting orders which the father now seeks to vary.

3. Ground 2 is misconceived.  If this court has jurisdiction to entertain the appeal, the ground should be dismissed.

Ground 3

1. Ground 3 asserts that the magistrate failed to take into account the objects of pt 5 of the Act, and in particular asserts that the magistrate failed to take account of the object of ensuring that children have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.

2. There are two answers to this ground. First, the question which the magistrate was addressing, consistent with the cases to which I have referred, was whether the changes in circumstances asserted by the father justified relitigating the parenting arrangements relating to the child, given the detrimental effect which continuing litigation of that kind could be assumed to have upon the child. In the context of that issue, the various objects and considerations identified in pt 5 of the Act are relevant to the extent that they enable an assessment of whether the best interests of the child are advanced by relitigation of the issues. However, it is neither necessary nor appropriate for the magistrate to give detailed attention or consideration in her reasons to each of the various objects and considerations specified in that part of the Act of the kind which would necessarily occur if it was decided that the best interests of the child justified relitigation of those issues. Accordingly, in the context of the issue which was under consideration by the magistrate, it was neither necessary nor appropriate for her to specifically address each and every object or consideration enunciated in pt 5 of the Act.

3. The second answer to this ground is that in her reasons for dismissing the father's application, the magistrate did give express consideration to the effect which his working roster would have upon the time which he would spend with the child.[61]  She noted the father's assertion that the time which he spent with the child would be reduced by 15% and in that context relied upon the judge's determination that the father inappropriately focused upon the quantity of time he spent with the child, rather than the quality of their time together.  A reduction of 15% in the time spent with the child cannot be said to be a change of the magnitude sufficient to compensate for the disruption caused by significant relitigation, using the terminology employed by the Full Court of the Family Court in Marsden & Winch, and applying the reasoning adopted by the Full Court in DL & W.

   [61] [2014] FCWAM 244 [58].

4. For these reasons, if the court has jurisdiction, ground 3 should also be dismissed.

1. In my view, the appellant has failed to identify any arguable error in the magistrate's decision.  The magistrate's enunciation of legal principle is entirely consistent with the previous cases to which I have referred.  Her application of those principles to the circumstances of the case before her was, in my respectful view, entirely appropriate and cannot be faulted.

Summary and conclusion

1. For the reasons I have given, this court lacks jurisdiction to entertain the appeal, which must be dismissed for that reason.  However, if a different view is taken, and this court does have jurisdiction to entertain the appeal, it should nevertheless be dismissed for the reasons which I have set out above.

2. BUSS JA:  I agree with Martin CJ.

3. MITCHELL J:  I agree with Martin CJ.

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION: CDW -v- LVE [2015] WASCA 247 (S)

CORAM:   MARTIN CJ

BUSS JA
MITCHELL J

HEARD:   ON THE PAPERS

DELIVERED          :   28 APRIL 2016

FILE NO/S:   CACV 140 of 2014

BETWEEN:   CDW

Appellant

AND

LVE
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :ANDREWS M

Citation  :CDW and LVE [2014] FCWAM 244

Catchwords:

Family law - Costs - Whether general position that parties bear their own costs should be departed from - Whether indemnity costs order warranted - Turns on own facts

Legislation:

Family Court Act 1997 (WA), s 8, s 210A, s 237, s 244
Family Court Rules 1998 (WA)
Family Law Act 1975 (Cth), s 117
Family Law Rules 2004 (Cth), r 19.18, r 19.19
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA), O 66
Suitors Fund Act 1964 (WA), s 14
Supreme Court (Court of Appeal) Rules 2005 (WA), r 66
Supreme Court Act 1935 (WA), s 167

Result:

Appellant to pay respondent's costs on party and party basis by reference to applicable scale of costs under the Legal Profession Act 2008 (WA), unless agreed

Category:    B

Representation:

Counsel:

Appellant:     Dr A F Dickey QC

Respondent:     Ms G M Anderson

Solicitors:

Appellant:     Millsteed Grasso

Respondent:     DCH Legal Group

Case(s) referred to in judgment(s):

CDW v LVE [2015] WASCA 247

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Esdale v Schenk [2012] FamCA 111; (2012) 46 Fam LR 547

K v R [2010] WASCA 237

KD v GB [2014] WASCA 165 (S)

Miller v Teale (1954) 92 CLR 406

Norris v Norris (1985) 1 NSWLR 472

Pezet v Pezet (1947) 47 SR (NSW) 45

Proust v Blake (1989) 17 NSWLR 267

Quancorp Pty Ltd v Macdonald [1999] WASCA 101

S v D [2014] WASCA 224 (S)

T v L [2006] WASCA 46 (S)

T v S [2015] WASCA 225 (S)

Wentworth v Rares (Unreported, NSWCA, 20 December 1991)

1. REASONS OF THE COURT:  On 4 December 2015 we delivered our reasons for concluding that this court lacked jurisdiction to hear an appeal brought by the appellant (the father) from the decision of a family law magistrate to dismiss his application to vary orders made with respect to parenting arrangements made by a judge of the Family Court of Western Australia in December 2012.[62]  In short, we concluded that the family law magistrate's order dismissing the father's application was 'an interlocutory order' within the meaning of that expression when used in the Family Court Act 1997 (WA) (Act), with the consequence that the father's appeal lay to the Family Court of Western Australia, rather than to this court. The appeal was therefore dismissed, and orders were made setting a timetable for the exchange of evidence and submissions with respect to the costs of the appeal, and it was further ordered that the issue of costs be determined by the court on the papers. Affidavits have been filed and served and written submissions exchanged in accordance with those orders. After considering the evidence and submissions, for the reasons which follow, we have concluded that the father should be ordered to pay the respondent's (the mother's) costs of the appeal. In the event that the parties are unable to agree with respect to the amount of those costs, they are to be taxed on a party and party basis by reference to the scale of costs applicable to proceedings in this court published pursuant to the Legal Profession Act 2008 (WA) (LP Act).

   [62] CDW v LVE [2015] WASCA 247.

The applicable legal regime

1. Because the parties were never married, the proceedings relating to the parenting arrangements pertaining to their child, and the appeal to this court, are governed by the Act rather than the Family Law Act 1975 (Cth) (FLA).

2. Section 237 of the Act provides:[63]

   [63] Section 237 of the Act is relevantly identical to s 117 of the FLA.

   237. Costs - FLA s. 117

   (1)Subject to subsection (2) and sections 205SB and 242, each party to proceedings under this Act is to bear the party's own costs.

   (2)If, in proceedings under this Act, the court hearing the proceedings is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (3), (5), (6A) and (6) and in accordance with any relevant rules, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just.

   (3)In considering what order (if any) should be made under subsection (2), a court must have regard to - 

   (a)the financial circumstances of each of the parties to the proceedings; and

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party; and

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters; and

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court; and

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings; and

   (f)whether a party to the proceedings has made an offer in writing to another party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

   (4)To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.

   (5)However, in proceedings in which an independent children's lawyer for a child has been appointed, if -

   (a)a party to the proceedings has received legal aid in respect of the proceedings; or

   (b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer,

   the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.

   (6A)If -

   (a)under section 207, the CEO intervenes in proceedings; and

   (b)the CEO acts in good faith in relation to the proceedings,

   the court must not, because of the intervention, make an order under subsection (2) of this section against the CEO, the Department (as defined by the Children and Community Services Act 2004 section 3) or the State.

   (6)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, a court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved under the [FLA].

1. Section 237 applies to proceedings under the Act. There are many cases in which it has been assumed that appeals to this court are proceedings under the Act, with the consequence that s 237 provides the legal regime governing the parties' entitlements with respect to their costs of such appeals.[64]  There is no reason to doubt the correctness of that assumption.

   [64] T v S [2015] WASCA 225 (S); KD v GB [2014] WASCA 165 (S); S v D [2014] WASCA 224 (S); K v R [2010] WASCA 237; T v L [2006] WASCA 46 (S).

2. It is well established that a superior court of record, such as this court, has jurisdiction to determine whether or not it has jurisdiction, and therefore has a power incidental to that jurisdiction to determine issues of costs relating to the determination with respect to jurisdiction[65] irrespective of the outcome of the jurisdictional issue. By parity of reasoning, proceedings dealing with the question of whether this court has jurisdiction under the Act are properly regarded as proceedings under the Act. In Esdale v Schenk,[66] Murphy J held, in relation to s 117 of the FLA, which corresponds with s 237 of the Act, that:

   [65] Pezet v Pezet (1947) 47 SR (NSW) 45, 51 (Jordan CJ) (disapproved in Miller v Teale (1954) 92 CLR 406, but not in relation to the issue of costs); Wentworth v Rares (Unreported, NSWCA, 20 December 1991) 3; Proust v Blake (1989) 17 NSWLR 267, 272 (Samuels JA, Campbell & Mathews JJ agreeing); Norris v Norris (1985) 1 NSWLR 472, 473 (Mahoney JA), 477 ‑ 478 (Priestley JA, Hope JA agreeing).

   [66] Esdale v Schenk [2012] FamCA 111; (2012) 46 Fam LR 547 [23].

   [T]he expression 'proceedings under [the] Act' in s 117 includes proceedings brought to determine if there is jurisdiction in respect of proceedings under the Act. The power to award costs pursuant to s 117 is a power ancillary to the exercise of those powers in respect of those proceedings.

3. For these reasons, s 237 of the Act applies to these proceedings. It should, however, be noted that if a contrary view were taken, the authorities to which we have referred establish that the court would in any event have jurisdiction to make orders with respect to the costs of these proceedings in the exercise of a general discretion which would not be constrained by the limitations imposed by s 237 of the Act.

4. It will be noticed that s 237(2) provides that a court exercising the power to order the payment of costs must do so 'in accordance with any relevant rules'. There are differing views reasonably open on the question of whether there are any 'relevant rules' for the purpose of these proceedings. However, for the reasons given below, it is unnecessary to resolve those differing views for the purposes of this case, and as submissions upon this question have not been provided by the parties, it is preferable to reserve its resolution to a case in which the issue has been argued.

5. On the one hand, s 210A of the Act confers specific powers upon the Supreme Court to make rules dealing with applications of the kind specified in that section, including applications for security for costs in relation to an appeal. In fact, no rules of that kind have been made. The section does not specifically empower the Supreme Court to make rules with respect to the costs of appeals to the Court of Appeal pursuant to the Act. However, notwithstanding the express powers to make rules conferred by s 210A, it is at least arguable that the Supreme Court has power to make rules with respect to the costs of appeals to this court under the Act pursuant to s 167 of the Supreme Court Act 1935 (WA) (Supreme Court Act). If the Supreme Court has such a power, it has not been exercised specifically with respect to appeals to this court under the Act, although, of course, there are rules which apply to appeals to the Court of Appeal generally.[67]  One of those rules deals with specific issues in respect of aspects of costs incurred in the course of appeals,[68] but there is no rule dealing generally with the costs of parties to appeals, which are therefore governed by O 66 of the Rules of the Supreme Court 1971 (WA) (RSC). However, O 66 is inconsistent with s 237 of the Act, as it embodies the default position of 'loser pays'. It is at least arguable that any 'relevant rule' within the meaning of that expression in s 237(2) of the Act must be consistent with that section.

   [67] Supreme Court (Court of Appeal) Rules 2005 (WA).

   [68] Rule 66.

6. On this view, the expression 'any relevant rules' in s 237(2) of the Act, when applied to appeals to this court under the Act, would be construed to mean any relevant rules made by the Supreme Court pursuant to either s 210A of the Act or s 167 of the Supreme Court Act. This view is open notwithstanding s 8 of the Act which provides that unless the contrary intention appears, a reference to a court in pt 12 of the Act (which includes s 237) is a reference to the Family Court of Western Australia. That is because it is at least arguable that a contrary intention appears from s 237, to the effect that its terms should apply to all proceedings under the Act, including proceedings in this court in respect of which 'court' should be construed as including a reference to this court.

7. On this view, there are no 'relevant rules' applicable to these proceedings for the purposes of s 237 of the Act, other than perhaps O 66 of the RSC.

8. On the other hand, s 244 of the Act confers various powers to make rules upon the judges of the Family Court of Western Australia. Those powers include, by subsection (1), the power to make rules with respect to the practice and procedure to be followed in the Family Court of Western Australia or in the Magistrates Court exercising jurisdiction under the Act. Subsection (2) of s 244 confers a more general power upon the judges of the Family Court of Western Australia to make rules not inconsistent with the Act or regulations made under the Act prescribing all matters that are required or permitted by the Act to be prescribed by rules. Subsection (3) of s 244 specifically provides that the rules to be made by the judges of the Family Court of Western Australia may make provision for:

   (h)matters relating to the costs of proceedings (including solicitor and client costs and party and party costs) and the assessment or taxation of those costs …

9. It is at least arguable that the generality of the rule-making powers conferred by s 244 of the Act empowers the Family Court of Western Australia to make rules with respect to the costs of proceedings under the Act generally, including proceedings under the Act brought in the Supreme Court.

10. Section 244(4) expressly provides that rules made under the Act may 'adopt or apply any rule for the time being in force under the [FLA]'. That power has been exercised in the Family Court Rules 1998 (WA) (Family Court Rules), which adopt and apply the rules in force under the FLA (Family Law Rules 2004 (Cth)) (Family Law Rules), other than certain specific rules not relevant to these proceedings. Amongst the Family Law Rules adopted and applied by that means is Rule 19.18, which provides:

    Method of calculation of costs

    (1)The court may order that a party is entitled to costs:

    (a)of a specific amount;

    (b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

    (c)to be calculated in accordance with the method stated in the order; or

    (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

    Example: For paragraph (1)(c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.

    (2)If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.

    (3)In making an order under subrule (1), the court may consider:

    (a)the importance, complexity or difficulty of the issues;

    (b)the reasonableness of each party's behaviour in the case;

    (c)the rates ordinarily payable to lawyers in comparable cases;

    (d)whether a lawyer's conduct has been improper or unreasonable;

    (e)the time properly spent on the case, or in complying with pre-action procedures; and

    (f)expenses properly paid or payable.

11. Family Law Rule 19.19 is also adopted and applied by the Family Court Rules. It provides:

    Maximum amount of party/party costs recoverable

    (1)This rule sets out the maximum amount of party/party costs a person may recover:

    (a)if the court orders that costs are to be paid and does not fix the amount; and

    (b)if a person is entitled to costs under these Rules.

    (2)The maximum amount of costs that a person may recover under this rule is as follows:

    (a)for fees--an amount calculated in accordance with Schedules 3 and 4;

    (b)for an expense mentioned in Schedule 4 (other than item 101)--the amount specified in Schedule 4 for that expense;

    (c)for any other expenses--a reasonable amount.

12. Schedule 3 of the Family Law Rules contains a scale with various items applicable to legal services provided with respect to a range of matters arising under the FLA. Understandably, there are no items in that scale which correspond to the particular steps taken in an appeal conducted in accordance with the rules of this court, of the kind that are found in scales of costs published from time to time under the LP Act. Schedule 4 of the Family Law Rules is only concerned with conduct money and witness fees, and has no relevance to these proceedings.

Principles governing the award of costs

1. For the purposes of these proceedings it is unnecessary to review the general body of principles which have been developed with respect to the manner in which the court's discretion to award costs should be exercised in proceedings under the Act or the corresponding provision of the FLA. For present purposes it is sufficient to observe that the default position, established by s 237(1) of the Act, is that each party to proceedings under the Act shall bear his or her own costs. However, a court dealing with proceedings under the Act may depart from that position and make an order as to costs if it 'is of the opinion that there are circumstances that justify it in doing so'. In considering whether there are circumstances that justify such an order, and if so, what order should be made, a court must have regard to each of the matters specified in s 237(3) of the Act. It is therefore appropriate to commence with a consideration of those matters which the court must take into account as a condition of its exercise of the power conferred by s 237 of the Act.

The financial circumstances of each of the parties to the proceedings

1. Affidavit evidence has been filed with respect to the financial circumstances of each party.  That evidence establishes that although the mother has not engaged in employment or otherwise derived regular income for some years, she owns the house in which she lives, which is not encumbered by debt, and has access to substantial cash reserves.  Although the evidence with respect to the father's financial circumstances is scant, it is clear that he is in regular employment in the resources industry.  In light of the father's failure to provide details with respect to his financial circumstances, it is reasonable to infer that his employment provides the capacity to satisfy any order which the court might reasonably make with respect to the costs of these proceedings.

2. In summary, this is not a case in which either party can reasonably assert that financial hardship would flow from either the making or the failure to make an order as to costs.

Legal Aid

1. Neither party is in receipt of assistance by way of Legal Aid.

The conduct of the parties to the proceedings

1. The history of the proceedings with respect to the parenting arrangements for the child was briefly recounted in our earlier reasons.  As we noted, each of the Family Court judge and the family law magistrate specifically referred to the desirability of finality with respect to parenting arrangements having regard to the best interests of the child.  The father commenced his appeal to this court notwithstanding those observations. 

2. In the appellant's case first filed in this court, nine grounds of appeal were asserted.  The mother filed her response to each of those grounds.  However, some months thereafter, the father proposed an amendment to his grounds of appeal, in effect abandoning the nine grounds identified in the original case and instead introducing three new grounds of appeal.  After correspondence was exchanged between the parties' legal advisers, orders were made by consent granting the father leave to amend the grounds of appeal in the manner proposed, and further ordering that he pay the mother's costs thrown away by reason of the amendment.  Those costs have not yet been assessed.  Of course, it was necessary for the mother to file a new respondent's case addressing the new grounds of appeal.

3. When the appeal was called on for hearing, the court drew the attention of the parties to the jurisdictional issue which became the subject of our reasons.  The father complains that he should have been given notice of that issue.  That complaint inappropriately regards the court as a source of advice to the parties as to the manner in which they should conduct their cases.  Further and in any event, when the issue was drawn to the attention of the father's legal advisers, no different approach was taken and written submissions were filed in an unsuccessful attempt to establish that this court had jurisdiction, so the provision of prior notice would have made no difference to the father's forensic strategy.

4. Against the contingency that a different view was taken elsewhere in relation to the jurisdiction of this court, and out of deference to the full argument which the parties had presented on the substantive merits of the appeal, the grounds of appeal were considered by the court.  It was concluded that the first ground proceeded upon a false premise of legal principle and misconstrued the magistrate's decision.  It was also concluded that the second ground of appeal misconceived the legal principles properly applied.  It was concluded that the third ground of appeal should also be dismissed, if the court had jurisdiction, on the ground that the father had failed to identify any arguable error in the decision of the magistrate.

5. The father submits that these conclusions should not be taken into account by the court in assessing whether to order costs against him because he is unable to appeal from those conclusions, given his failure to establish that this court had jurisdiction.  There are at least two answers to that submission.  First, the exercise of this court's power with respect to costs is to be performed by reference to the conclusions at which we arrived in relation to these proceedings, rather than by reference to the possible outcome of some hypothetical appeal.  Second and in any event, if costs are awarded against the father in reliance upon reasoning which he considers to be erroneous, he can apply for special leave to appeal to the High Court of Australia.  It follows that our view as to the lack of merit in the father's appeal is relevant to the mother's application for an order for costs in her favour.

Failure to comply with previous orders of the court

1. The proceedings were not necessitated by the failure of any party to comply with previous orders of the court, and this factor is therefore irrelevant to this case.

Whether any party to the proceedings has been wholly unsuccessful

1. The father's attempt to vary the parenting arrangements was wholly unsuccessful before the family law magistrate, and in this court.  Whether he will be successful in an appeal to the Family Court of Western Australia remains to be seen.  However, for the reasons previously published, in our view his appeal lacked merit.

Settlement offers

1. Neither party to the proceedings made any offer to the other to resolve the father's application to vary the parenting arrangements.

Any other relevant matters

1. The court does not consider any matters other than those which we have already addressed to be relevant to the exercise of the discretion with respect to costs.

Family Law Rule 19.18

1. Family Law Rule 19.18(3) lists a number of matters which a court may consider before making an order as to costs.  If that rules applies,[69] none of the matters listed in that rule appear to us to require specific consideration, over and above the extent to which they have been reflected in the observations we have already made.  Accordingly, for the purposes of this case, it is unnecessary to determine whether that rule applies.

   [69] See the countervailing arguments on that question identified above.

The mother's application for indemnity costs

1. The mother applies for an order that the father pay her costs on an indemnity basis - that is to say, that she be reimbursed for all costs reasonably incurred and which are reasonable in amount.  The evidence establishes that such an application was foreshadowed in correspondence shortly after the filing of the appellant's case.  In support of that application, the mother submits that:[70]

   [70] Respondent's submissions [34].

   (a)the father's appeal was so lacking in merit as to involve an element of improper, or at least unreasonable, conduct;[71]

   [71] Relying upon the observations of Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225.

   (b)the father's conduct throughout the proceedings relating to the parenting arrangements supports the conclusion that he was pursuing proceedings against the mother for an ulterior motive and in wilful disregard of known relevant facts; and

   (c)the father should have known that the appeal had no chance of success on its merits.

2. We do not accept these submissions.  Although we concluded that the father's case on appeal was weak, it was not so weak as to support an inference of impropriety or unreasonableness.  As Wheeler J observed in Quancorp Pty Ltd v Macdonald:[72]

   [72] Quancorp Pty Ltd v Macdonald [1999] WASCA 101 [7].

   It is inappropriate that a case be too readily characterised as 'hopeless' so as to justify an award of indemnity costs to the successful party.

   Nor does the weakness of the father's case sustain the conclusion that he has commenced and persists in this litigation for an ulterior purpose and in disregard of the known facts, or that he either knew or should have known that his appeal had no chance of success.

3. Accordingly, we do not consider that this is a case in which indemnity costs should be ordered.

Are there circumstances which justify a costs order against the father?

1. It remains to determine whether there are circumstances which justify the court exercising the power to order costs conferred by s 237(2) of the Act. In our view, the father's conduct of the proceedings justifies the exercise of that power. In particular, as we have noted:

   (a)the father commenced his appeal to this court notwithstanding observations made by each of the Family Court judge and the family law magistrate with respect to the desirability of finality and certainty in relation to the parenting arrangements pertaining to the child, given the primacy of the best interests of that child;

   (b)the father conducted his appeal in a way which magnified the costs to the mother, by abandoning all nine original grounds of appeal and substituting three different grounds of appeal;

   (c)two of the grounds of appeal were misconceived and the third failed to identify any arguable error on the part of the family law magistrate; and

   (d)the father failed to establish that this court had jurisdiction to entertain his appeal.

1. In our view, these circumstances, in combination, justify a departure from the default position whereby each party bears their own costs, and in particular justify an order that the father pay the mother's costs of the appeal, including the costs thrown away by reason of his amendment of the grounds of appeal, and the costs incurred in relation to the mother's application for costs.

Which scale should be used?

1. If it applies, Family Law Rule 19.18 sets out a variety of different mechanisms which a court might utilise when exercising the power to order costs. Those mechanisms include the power to specify that costs are to be calculated in accordance with the method stated in the order, or assessed in accordance with Schedule 3 of the Family Law Rules. As we have noted, that Schedule is generically applicable to proceedings brought under the FLA (and, by adoption, the Act), whereas the scales of costs published from time to time under the LP Act contain items specifically referrable to the procedure utilised by this court in relation to appeals. For that reason, in our view it is appropriate for the mother's costs to be assessed by reference to the relevantly applicable scale published under the LP Act, rather than by reference to Schedule 3 of the Family Law Rules. That result can be achieved either by exercising the general powers conferred by Family Law Rule 19.18(1) (if it applies) or pursuant to the exercise of the court's general discretion with respect to costs, if that rule does not apply. Again, therefore, it is unnecessary to determine whether that rule applies in this case.

The Suitors Fund Act

1. The father submits that the costs of each party should be limited to what may be recovered under the Suitors Fund Act 1964 (WA) (SF Act), and that the court should grant a certificate enabling recovery of those costs pursuant to s 14(1)(c) of that Act.  There is a real question as to whether the reference in that section to the discontinuance of the hearing of a civil or criminal proceeding and the ordering of a new trial applies to appeals to this court.  However, it is unnecessary to resolve that question because even if the subsection is potentially applicable to these proceedings, there are various reasons why the father's submission must be rejected.

2. Section 14(1)(c) of the SF Act would only apply to this case if:

   (a)the hearing of a proceeding was discontinued;

   (b)a new trial was ordered; and

   (c)the reason for that course was not attributable to the act, neglect or default of any party.

3. None of these conditions are satisfied.  The father's appeal was dismissed, not discontinued, because he and his legal advisers brought the appeal in the wrong court.  No new trial was ordered.  The SF Act has no application to this case.

Conclusion

1. For the reasons we have given, the circumstances of this case justify an order that the father pay the mother's costs of the appeal which, unless agreed, are to be assessed on a party and party basis by reference to any relevant scale or scales published under the provisions of the LP Act.