Isakson & Isakson

Case [2025] FedCFamC1A 65

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Isakson & Isakson [2025] FedCFamC1A 65

Appeal from: Isakson & Isakson [2025] FCWAM 46
Appeal number: NAA 147 of 2025
File number: 3852 of 2018
Judgment of: AUSTIN J
Date of judgment: 14 April 2025
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the Magistrate dismissed the father’s application to vary final parenting orders – Where the father alleges the Magistrate made an error of law by taking extraneous material into account – Where the Family Law Act 1975 (Cth) (“the Act”) permits material on which existing final parenting orders were based to be considered when deciding whether final parenting orders should be re-opened – Where the Magistrate informed the parties of the intention to take the single expert report into account and gave them the opportunity to be heard – Where the father contends the Magistrate misapplied the Act – Where the father contended his changes circumstances, including his new living arrangements, the child’s wishes and some improvement in the state of his mental health, were sufficient to justify fresh litigation – Where the Magistrate concluded the changes in circumstance asserted by the father, individually and in aggregation, did not justify the reconsideration of the final parenting orders – Application dismissed – Application for costs in the sum of $1,000 granted.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 65D, 65DAAA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 138

Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Commonwealth of Australia v Sanofi (2024) 421 ALR 1; [2024] HCA 47

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150

Pickford & Pickford [2024] FedCFamC1A 249

Queensland & Ors v Mr Stradford (2025) 99 ALJR 396; [2025] HCA 3

Radecki & Radecki [2024] FedCFamC1A 246

Schorel & Schorel (1990) FLC 92-144; [1990] FamCA 58

Stanley v DPP (NSW) (2023) 278 CLR 1; [2023] HCA 3

State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26

Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 44
Date of hearing: 9 April 2025
Place: Perth
Counsel for the Applicant: Mrs Oakley
Solicitor for the Applicant: Bannerman Solicitors
Counsel for the Respondent: Mr Worth
Solicitor for the Respondent: DCH Legal Group

ORDERS

NAA 147 of 2025
3852 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR ISAKSON

Applicant
AND:

MS ISAKSON

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

14 APRIL 2025

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 31 March 2025 is dismissed.

2.The applicant shall pay the respondent’s party/party costs of the application, fixed in the sum of $1,000.

3.The Response to an Application in an Appeal filed on 8 April 2025 is otherwise dismissed.

Note:   The form of the order…

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Isakson & Isakson [2025] FedCFamC1A 65
Case
[2025] FedCFamC1A 65
Decision Date

CaseChat Overview and Summary

In the case of Isakson & Isakson, the Federal Circuit and Family Court of Australia dismissed an application for an extension of time to file a Notice of Appeal against a Magistrates Court of Western Australia order. The father sought to appeal the Magistrate's decision to dismiss his application to vary final parenting orders concerning his child. The father argued that the Magistrate made an error of law by considering extraneous material when deciding whether to reopen the final parenting orders. The Family Law Act 1975 permits material on which existing final parenting orders were based to be considered when deciding whether to reopen such orders. The Magistrate had informed the parties of this intention and provided them the opportunity to be heard.

The court was required to decide whether the father's application for an extension of time to file a Notice of Appeal should be granted. The father alleged that the Magistrate misapplied the Act by considering material on which the existing final parenting orders were based. The father contended that his changed circumstances, including new living arrangements, the child's wishes, and some improvement in his mental health, were sufficient to justify fresh litigation. The Magistrate concluded that the changes in circumstances asserted by the father, individually and in aggregation, did not justify reconsideration of the final parenting orders. The court found that the Magistrate had carefully isolated the changed circumstances advocated by the father, accepted his untested evidence as to the asserted changes at its highest, but found the changes were not "significant," either individually or collectively, and gave logical reasons for those conclusions. The court dismissed the father's application for an extension of time to file a Notice of Appeal, finding that the application did not manifest any reasonable prospect of success.

The court's reasoning was based on the provisions of the Family Law Act 1975, which state that a court must not reconsider a final parenting order unless there has been a significant change of circumstances since the final parenting order was made, and it is in the best interests of the child for the final parenting order to be reconsidered. The Magistrate had found that the changes in circumstances asserted by the father were not significant, and thus, the court was satisfied that the decision to dismiss the father's application to vary the final parenting orders was correct. The court also noted that allowing the father an extension of time within which to prosecute the application for leave to appeal would cause undue prejudice to the mother, as she would unnecessarily incur more expense and delay in resisting the application. The court granted the mother's application for costs in the sum of $1,000, as the father's application for an extension of time was wholly unsuccessful.

Orders

Orders of the court

NAA 147 of 2025

3852 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ISAKSON

Applicant

AND:

MS ISAKSON

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

14 APRIL 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 31 March 2025 is dismissed.

2. The applicant shall pay the respondent’s party/party costs of the application, fixed in the sum of $1,000.

3. The Response to an Application in an Appeal filed on 8 April 2025 is otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

These reasons explain the dismissal of an application to bring an appeal out of time from an order of the Magistrates Court of Western Australia.BACKGROUND The parties finally separated in September 2016 when their child was barely 14 months old. Proceedings in respect of the child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) were commenced in May 2018 and were concluded at trial in December 2020. On the last day of the trial, the parties resolved their differences of opinion and agreed upon final consent orders which provided, in summary, for them to equally share parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial time with the father, comprising five nights each fortnight in school terms and equal portions of school holidays. Just on three years later, in January 2024, the father filed an Initiating Application to re-open the proceedings. In broad terms, he sought to vary the former orders in these three ways:(a)by expanding the time which the child spends with him during school terms, initially to six nights per fortnight, but then to an equal time regime once the child starts secondary school several years hence (at [11(a)], [32] and [33]);(b)by immediately changing the child’s primary school enrolment from the school upon which the parties formerly agreed (at [6(d)], [8] and [11(b)]); and(c)by certain minor adjustments (at [11(c)], [11(d)] and [12]). The mother opposed the father’s application to re-open the parenting proceedings, contending there was no change in circumstances to warrant it (at [13] and [31]). The magistrate therefore entertained the dispute as a threshold hearing under s 65DAAA of the Act in June 2024 (at [16]–[18]) and, since the evidence was untested by cross-examination and the father was the applicant, his evidence was taken at its highest (at [28]). Judgment was reserved and delivered with ex tempore reasons in February 2025. The magistrate dismissed the father’s Initiating Application. In relation to the first issue concerning the time spent by the child with the father, the father contended the changed circumstances were his occupation of a separate household from the paternal grandparents (at [34]), the child’s expression of the desire to spend more time with him (at [36]), and some improvement in the state of his mental health (at [55]). The magistrate did not find any of those changes to be sufficient to justify fresh litigation (at [35], [39], [69], [70] and [73]). In so far as the child’s expressed view is concerned, the magistrate made the unexceptional observation that the child was now a few years older and had commensurately developed maturity, but those changes must have been anticipated when the parties reached agreement over the existing orders which would operate into the future (at [37] and [39]). The parties must also have anticipated the child would form views as he aged. The father conflated a foreseen change for an unforeseen change.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The magistrate carefully isolated the changed circumstances for which the father advocated, accepted his untested evidence as to the asserted changes at its highest, but found the changes were not “significant”, either individually or collectively, and gave logical reasons for those conclusions. As s 65DAAA(1)(a) was not fulfilled, s 65DAAA(1)(b) was not then engaged. The magistrate’s final comments about the child’s best interests were superfluous.Conclusion The proposed application for leave to appeal does not manifest any reasonable prospect of success. Allowing the father an extension of time within which to prosecute the application for leave to appeal would pointlessly cause undue prejudice to the mother, as she would unnecessarily incur more expense and delay in resisting the application. Such considerations outweigh the father’s modest delay of five days in bringing the extension application. The mother sought her party/party costs of resisting the extension application, which she assessed in the sum of $1,000, on account of the father’s application being a request for an indulgence which was wholly unsuccessful. The father did not resist the costs order, but asserted costs should be assessed at only $500. Since the father conversely claimed costs of $1,500 from the mother if his application had succeeded, his challenge to her lesser costs of $1,000 lacked persuasion. The mother’s counsel set aside one-half a day to contest the application, so she shall have her costs in the modest sum assessed.

Ratio Decidendi

Legal Principle Established

It is helpful to refer to the relevant provisions of the Act, which state as follows:65DAAA Reconsideration of final parenting orders(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:(a)the reasons for the final parenting order and the material on which it was based;(b)whether there is any material available that was not available to the court that made the final parenting order;(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.…(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court. First it is necessary to say something about s 65DAAA(4) of the Act. That provision does not protect the decision made under s 65DAAA(1) by a judge or magistrate from an appeal by declaring it to be valid despite error. The only purpose of a saving provision like s 65DAAA(4) is to guard against any suggestion that non-compliance with the requirements of s 65DAAA(1) by an inferior court, such as Magistrates Court of Western Australia, amounts to jurisdictional error which retrospectively invalidates the decision (Queensland & Ors v Mr Stradford (2025) 99 ALJR 396 at [51]–[53]; Stanley v DPP (NSW) (2023) 278 CLR 1 at [16], [45], [95] and [158]). The saving provision has no work to do in respect of decisions made by superior courts, such as the Federal Circuit and Family Court of Australia (Division 1), whose decisions are valid until set aside on appeal or quashed by prerogative writ (State of NSW v Kable (2013) 252 CLR 118 at [19], [32], [33], [38], [41], [56] and [57]). Nor does the saving provision now have any work to do in respect of decisions made by the Federal Circuit and Family Court of Australia (Division 2), even though it is an inferior court, given how s 138 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) now protects its decisions from collateral attack and preserves the validity of its decisions until set aside on appeal.