L v H - [2025] WASCA 18

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   L -v- H [2025] WASCA 18
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   24 JANUARY 2025
DELIVERED          :   24 JANUARY 2025
PUBLISHED           :   24 JANUARY 2025
FILE NO/S:   CACV 62 of 2024
BETWEEN:   L
Appellant

AND

H
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE ANDREWS
File Number            :   PTW 6761 of 2020

Catchwords:

Family law - Where party to proceedings for parenting orders in Magistrates Court of Western Australia constituted by family law magistrate appeals against costs order made in those proceedings - Whether appeal lies from Magistrates Court to Court of Appeal - Whether costs order is interlocutory order or final order - Whether appeal to Court of Appeal should be dismissed as incompetent

Legislation:

Family Court Act 1997 (WA), s 210A, s 211

Result:

Appeal dismissed as incompetent

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

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

Barlow v Law Society (ACT) [2017] ACTCA 45
Bienstein v Bienstein [2003] HCA 7; (2003) 30 Fam LR 488
CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297
Saunders v Victorian Workcover Authority [2015] VSC 787
Skiba v Australian Information Commissioner [2023] FCA 1467
Vatarescu v Commonwealth [2010] ACTCA 7
Victoria Legal Aid v The County Court of Victoria [2004] VSCA 113; (2004) 9 VR 686

REASONS OF THE COURT:

At the hearing of this appeal on 24 January 2025, we ordered that the appeal be dismissed as incompetent. We said that we would publish reasons for making that order later. These are our reasons for making that order.
On 29 May 2024, a family law magistrate sitting in the Magistrates Court at Terrace Road in Perth dismissed the appellant's application for parenting orders relating to the parties' de facto child under the Family Court Act 1997 (WA). The orders made on 29 May 2024 provided for the respondent to make an application for costs in the primary proceedings. The respondent sought costs, and on 3 September 2024 the magistrate ordered the appellant to pay the respondent's costs of the primary proceedings fixed in the sum of $5,000 (primary costs order).
On 4 October 2024, the appellant lodged an appeal notice in this court seeking to appeal against the primary costs order. The appeal notice misdescribes the primary court as the Family Court of Western Australia.
Appeals from orders made under the Family Court Act by the Magistrates Court constituted by a family law magistrate are provided for by s 210A and s 211 of the Family Court Act. Under s 210A, an appeal lies to this court from an order of the Magistrates Court constituted by a family law magistrate made in the non-federal jurisdiction of the Magistrates Court unless the order is an interlocutory order. Under s 211, an appeal from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading L v H

Details

AGLC: L v H [2025] WASCA 18
Case: [2025] WASCA 18
Decision Date: 24 JANUARY 2025

CaseChat Overview and Summary

In the matter of L v H, the appeal was brought before the Court of Appeal of Western Australia. The appellant, L, sought to appeal a costs order made in parenting proceedings in the Magistrates Court of Western Australia. The respondents, H, argued that the appeal was incompetent as the costs order was not a final order and that the appeal was not properly before the Court of Appeal.

The primary legal issues before the court were whether an appeal lay from the Magistrates Court to the Court of Appeal and whether the costs order was interlocutory or a final order. Additionally, the court considered whether the appeal should be dismissed as incompetent.

The court found that the appeal did not lie from the Magistrates Court to the Court of Appeal because the appeal was from an interlocutory order, which is not ordinarily appealable. The court held that the costs order was interlocutory in nature as it did not determine the substantive rights of the parties in the parenting proceedings. The court further held that the appeal should be dismissed as incompetent because it was not properly before the court. The court emphasised that the proper avenue for appeal from a costs order in the Magistrates Court was by way of a case stated to the Supreme Court of Western Australia. The appeal was accordingly dismissed.

Orders