GXB v Honourable Justice Ciara Aisling Tyson
[2025] WASCA 91
•16 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GXB -v- HONOURABLE JUSTICE CIARA AISLING TYSON [2025] WASCA 91
CORAM: MITCHELL JA
HEARD: 16 JUNE 2025
DELIVERED : 16 JUNE 2025
PUBLISHED : 16 JUNE 2025
FILE NO/S: CACV 49 of 2025
BETWEEN: GXB
Appellant
AND
HONOURABLE JUSTICE CIARA AISLING TYSON
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SOLOMON J
Citation: GXB -v- HONOURABLE JUSTICE CIARA AISLING TYSON [2025] WASC 206
File Number : CIV 1480 of 2025
Catchwords:
Family law - Judicial review - Where appellant sought judicial review in the General Division of the Supreme Court of orders made by the Family Court of Western Australia in the exercise of its federal jurisdiction under the Family Law Act 1975 (Cth) - Where the judicial review application was dismissed on the ground that the alternative remedy of an appeal to the Federal Circuit and Family Court of Australia was available - Where appellant has appealed to the Court of Appeal Division of the Supreme Court against the dismissal of her judicial review application to the General Division of the court - Where appellant seeks a stay of the proceedings in the Family Court of Western Australia pending determination of the appeal to the Court of Appeal - Stay refused
Legislation:
Family Law Act 1975 (Cth), s 39, s 41(3)
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 26(1)(da)(i)
Result:
Application for stay of family law proceedings dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
MITCHELL JA:
(These reasons were delivered extemporaneously on 16 June 2025 and have been edited from the court's record of the decision.)
I am dealing with the appellant's application for a stay of proceedings pending in the Family Court of Western Australia (Family Court) until the determination of the present appeal to this court.
Background
The appellant and her estranged husband are currently involved in protracted proceedings in the Family Court in relation to their divorce, maintenance and property disputes. In those proceedings, the Family Court is exercising federal jurisdiction in a matter arising under the Family Law Act 1975 (Cth), which is conferred by s 39 read with s 41(3) of that Act. Justice Tyson, who is named as the respondent to this appeal, is currently managing those matrimonial proceedings in the Family Court.
Orders made by the Family Court on 5 November 2024 programmed applications made by the appellant and her husband for various interim orders to be heard on 17 April 2025.[1] The primary orders sought by the appellant's husband are for the grant of a divorce, orders that the appellant and the husband keep assets in their respective possession and that the appellant's spousal maintenance be paid in a reduced amount until September 2025, when maintenance payments would cease.[2]
[1] See appellant's affidavit sworn 12 June 2025 annexure C at pdf pages 100 - 105.
[2] See appellant's affidavit sworn 12 June 2025 annexure D at pdf pages 107 - 110.
On 16 April 2025, the appellant lodged with the Family Court an application in a case which sought an order that Tyson J recuse herself from the matter and various other forms of relief.[3]
[3] See appellant's affidavit sworn 12 June 2025 annexure E at pdf pages 157 - 168.
The appellant did not attend the hearing on 17 April 2025. Justice Tyson found that the appellant had failed to comply with the programming orders made on 5 November 2024. Justice Tyson decided that the husband should be given leave to proceed on an undefended basis. Her Honour heard the husband's application for interim relief in the absence of the appellant. Justice Tyson reserved her decision at the conclusion of the hearing: see [2025] FCWA 96.[4] The orders made by the Family Court on 17 April 2025 were that the husband have leave to proceed on an undefended basis in terms of the interim orders sought in a minute filed 25 March 2025, and that the proceedings be adjourned for judgment to be delivered on a date to be advised.[5] I am informed by the appellant that no date has yet been advised.
[4] See appellant's affidavit sworn 12 June 2025 annexure B at pdf pages 93 - 98.
[5] See appellant's affidavit sworn 12 June 2025 annexure B at pdf pages 90 - 91.
On 7 May 2025, the appellant applied to the General Division of this court for judicial review of the orders made by Tyson J on 5 November 2024 and 17 April 2025. The appellant sought writs of certiorari and prohibition, and any other order deemed appropriate by the court. Although the prolix grounds of judicial review raised various matters, the core contention appears to have been that the appellant is being denied natural justice (through both a breach of the hearing rule and the bias rule) in the Family Court proceedings.
The appellant's judicial review application was heard on an ex parte urgent basis on 16 May 2025. At the conclusion of the hearing, Solomon J dismissed the judicial review application for ex tempore reasons which his Honour then gave. Those ex tempore reasons were subsequently converted into a written judgment: GXB v Honourable Justice Ciara Aisling Tyson [2025] WASC 206. His Honour doubted whether the orders of the Family Court were judicially reviewable by the Supreme Court. Justice Solomon held that, even if the Supreme Court had jurisdiction to undertake judicial review of decisions of the Family Court, this was not an appropriate case to exercise the discretion to grant judicial review remedies having regard to the appellant's rights of appeal against those orders. His Honour also considered that for the Supreme Court to undertake judicial review of decisions of the Family Court would be an inappropriate interference with the processes of that court. Justice Solomon therefore dismissed the judicial review application on the basis that his Honour was not persuaded that the Supreme Court has jurisdiction to undertake judicial review of the decisions of the Family Court, and he was not persuaded in any event that it would be a proper exercise of the court's discretion, even if the Supreme Court had such jurisdiction.
On 20 May 2025, the appellant lodged a notice of appeal against the orders made by Tyson J on 17 April 2025 to the Federal Circuit and Family Court of Australia, Division 1 (Federal Appeal Court).[6] On 23 May 2025, a judicial registrar of that court advised the appellant that the notice of appeal to that court had not been accepted for filing, for various procedural reasons.[7]
[6] See appellant's affidavit sworn 12 June 2025 annexure H at pdf pages 403 - 411.
[7] See appellant's affidavit sworn 12 June 2025 annexure I at pdf pages 415 - 416.
On 28 May 2025, Tyson J ordered that the appellant's application in a case dated 16 April 2025 and the appellant's supporting affidavit be accepted for filing in the Family Court. Justice Tyson ordered that paragraph 1 of that application in a case (which sought the recusal of Tyson J) be listed for determination at 12.00 pm on 16 June 2025.[8]
[8] See appellant's affidavit sworn 12 June 2025 annexure G at pdf pages 389 - 395.
On 12 June 2025, the appellant filed an appeal notice in this court, appealing from the order of Solomon J dismissing her judicial review application. As the time for instituting an appeal expired on 6 June 2025, the appellant requires an extension of time in which to appeal.
On Friday 13 June 2025, the appellant filed an application in the appeal to this court seeking a stay of the Family Court proceedings to prevent Tyson J from giving effect to 'unlawful orders made in [the appellant's] absence due to serious illness on 17 April 2025, at the hearing scheduled in the [Family Court] on Monday 16 June [2025] at 12 Noon'. That application is supported by an affidavit sworn by the appellant on 12 June 2025. The application in an appeal was listed before me on an urgent basis at 10 am on Monday 16 June 2025 so that it could be determined prior to the hearing in the Family Court at 12.00 pm on 16 June 2025 which is sought to be stayed by the application.
General Principles
The general principles on which this court determines whether it will grant or refuse a stay are well established: Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9] and Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22] - [23].
Broadly speaking, there are three primary considerations. First, whether a stay is necessary to preserve the subject matter of the appeal - that is whether, without the stay, the appeal might be rendered nugatory. In this respect the term 'nugatory' is used in the sense of indicating that a stay is necessary to preserve the subject matter or the integrity of the litigation or as indicating that, at the least, refusal of a stay could create practical difficulties in respect of the relief which may be granted on the appeal. Secondly, whether the appeal has a reasonable prospect of succeeding. Thirdly, whether the balance of convenience favours the grant of the stay.
Disposition
The appellant seeks to stay proceedings pending in the Family Court, rather than the order of Solomon J or the proceedings in the General Division of this court. For the purposes of dealing with the present stay application, I will make three assumptions in the appellant's favour, without determining the correctness of any of those assumptions. First, I will assume that the Supreme Court has jurisdiction to grant relief by way of judicial review remedies in respect of orders made by the Family Court in the exercise of its federal jurisdiction conferred by the Family Law Act. Secondly, I will assume that this court has power, in order to protect the effective exercise of its appellate jurisdiction in an appeal against a refusal by the General Division to judicially review orders of the Family Court, to stay proceedings pending in the Family Court until the determination of the appeal to this court. Thirdly, I will assume that the refusal to grant a stay might render the appeal against Solomon J's orders nugatory in the relevant sense.
On those assumptions favourable to the appellant, in my view there is no proper basis on which to stay the Family Court proceedings in the present case. That is because the order dismissing the appellant's judicial review application is plainly correct and is not attended by sufficient doubt to justify the grant of a stay.
It is established that judicial review remedies may be denied in the exercise of the court's discretion where an alternative remedy is available: see, for example, Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [133] - [140] (Martin CJ, Wheeler JA agreeing).
An appeal from the orders made by the Family Court lies to the Federal Appeal Court under s 26(1)(da)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). An appeal will also lie to the Federal Appeal Court from any order which may be made by the Family Court on the decision which it reserved on 17 April 2025.
The existence of these rights of appeal provides a compelling reason for the exercise of the Supreme Court's discretion to refuse to grant relief by way of judicial review remedies on the ground that an alternative remedy is available. That aspect of Solomon J's reasons is plainly correct and provided a sufficient basis for dismissing the appellant's judicial review application. I note that the appellant has expressed dissatisfaction with her past interactions with the Federal Appeal Court. That dissatisfaction does not provide a proper basis for the Supreme Court to grant relief by way of judicial review. It would not be proper for this court to exercise its discretion for the purpose of circumventing the provision which the Commonwealth Parliament has made as to the identity of the court that can determine appeals against orders of the Family Court made in the exercise of its federal jurisdiction.
In the course of her oral submissions before me, the appellant contended that she had exhausted her rights of appeal to the Federal Appeal Court. I do not accept that submission. While the appellant's attempts to institute an appeal in the Federal Appeal Court have been rejected on procedural grounds, it does not appear that her rights of appeal have been effectively exercised so as to be spent.
The fact that the appellant filed her stay application on the Friday prior to the Monday hearing which she sought to stay has required the stay application to be dealt with expeditiously. This court does not have the benefit of all of the material which might have been required if the appellant had acted promptly after the dismissal of her judicial review application. The appellant has not yet filed an appellant's case which contains her final grounds of appeal or submissions in support of those grounds. Nor has she identified draft grounds of appeal. However, notwithstanding these limitations, having heard the appellant's oral submissions, I am satisfied that this is one of the rare cases where this court can confidently conclude that the appeal has no reasonable prospect of succeeding at this early stage. It is clear that the appropriate remedy for the appellant if she is dissatisfied with orders made by the Family Court in the exercise of its federal jurisdiction is to appeal against those orders to the Federal Appeal Court rather than seek judicial review of those orders in the Supreme Court. That provides a sufficient reason for refusing a stay in the present case.
My conclusion that the stay application should be dismissed is reinforced by my consideration of the balance of convenience. The Family Court proceedings have been ongoing since 2018. The interests of the appellant's husband in the determination of the protracted dispute will be prejudiced by the further delay that would follow from the grant of a stay pending determination of the appeal. On the other hand, if the appellant is dissatisfied with the outcome of the decision which Tyson J has reserved, she can appeal against the orders to the Federal Appeal Court. If the enforcement of property or maintenance orders would have consequences that could not be reversed if the appeal to the Federal Appeal Court was successful, the appellant could seek from that court a stay of the enforcement of the orders until the determination of that appeal. In that event, the appellant's interests could properly be protected in the Federal Appeal Court proceedings.
I also note that the appellant's husband has not been joined as a respondent to this appeal, although this may have been a matter of inadvertence on the appellant's part in lodging the appeal notice through the eCourts portal. The appellant's husband will need to be joined as a party to the appeal before any order adverse to his interests could properly be made. Further, even if the appellant had established grounds for the grant of a stay of the Family Court proceedings pending the determination of the present appeal, I would not have made that order without the appellant's husband being given notice of the application and some opportunity to be heard upon it. While the urgency of the matter may have required that notice and opportunity to be short, it does not justify denying the appellant's husband any opportunity to be heard before granting a stay of the Family Court proceedings.
Orders
For the above reasons, I make the following orders:
1.The appellant's husband be joined as the second respondent to this appeal.
2.The appellant's application in an appeal filed on 13 June 2025 is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
16 JUNE 2025
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