L v H

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 an interlocutory order made by the Magistrates Court constituted by a family law magistrate in the non‑federal jurisdiction of the Magistrates Court lies to the Family Court of Western Australia.
Whether the appellant's right of appeal is to this court or to the Family Court of Western Australia therefore turns on whether the costs order which is the subject of the appeal is to be characterised as an interlocutory order or a final order.
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.[1]
[1] Bienstein v Bienstein [2003] HCA 7; (2003) 30 Fam LR 488 [25].
However, costs orders ordinarily draw their character from the character of the judgment or orders to which they relate.[2] In the present case, the primary costs order relates to an application for parenting orders. It is established that parenting orders are interlocutory in character, as they are subject to discharge or variation on a subsequent application and so do not finally determine the rights of the parties in relation to the subject of the order.[3] Therefore the primary costs order in the present case bears the same character of an interlocutory order.
[2] Victoria Legal Aid v The County Court of Victoria [2004] VSCA 113; (2004) 9 VR 686 [8], [10]; Vatarescu v Commonwealth [2010] ACTCA 7 [50]; Saunders v Victorian Workcover Authority [2015] VSC 787 [7] - [10]; Barlow v Law Society (ACT) [2017] ACTCA 45 [34]; Skiba v Australian Information Commissioner [2023] FCA 1467 [29].
[3] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297.
It follows that the primary costs order 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 against that order lies to this court. Any appeal from that order lies to the Family Court of Western Australia under s 211 of the Family Court Act.
It appears that the appellant initially sought to appeal against the primary costs order to the Family Court of Western Australia. However, a letter from the principal registrar of that court dated 2 October 2024 indicated that the appeal notice lodged by the appellant in that court had not been accepted for filing on the basis that the order was a final order rather than an interlocutory order. In our respectful opinion, the principal registrar's view was incorrect. While it is unfortunate that the appellant was given this advice, the jurisdiction of this court depends on the terms of the legislation rather than the position adopted by a court officer. It is to be expected that, with the benefit of these reasons, the principal registrar will take a different view of that question in the future.
The present appeal to this court must therefore be dismissed as incompetent.

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
24 JANUARY 2025

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.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established