MCG v JM
[2016] WASCA 75
•6 MAY 2016
MCG -v- JM [2016] WASCA 75
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 75 | |
| THE COURT OF APPEAL (WA) | 06/05/2016 | ||
| Case No: | CACV:135/2014 | 12 APRIL 2016 | |
| Coram: | MARTIN CJ NEWNES JA MITCHELL J | 12/04/16 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MCG JM |
Catchwords: | Appeals Appeal from decision of family law magistrate under Family Court Act 1997 (WA) Whether decision interlocutory or final Whether Court of Appeal has jurisdiction to hear appeal |
Legislation: | Family Court Act 1997 (WA), s 205ZG, s 205ZH, s 205ZJ, s 210A |
Case References: | Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 CDW v LVE [2015] WASCA 247 Hall v The Nominal Defendant (1966) 117 CLR 423 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MCG -v- JM [2016] WASCA 75 CORAM : MARTIN CJ
- NEWNES JA
MITCHELL J
- Appellant
AND
JM
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150 TERRACE ROAD
Coram : MAGISTRATE MORONI
Citation : MCG v JM [2014] FCWAM 223
File No : PTW 3264 of 2009
Catchwords:
Appeals - Appeal from decision of family law magistrate under Family Court Act 1997 (WA) - Whether decision interlocutory or final - Whether Court of Appeal has jurisdiction to hear appeal
Legislation:
Family Court Act 1997 (WA), s 205ZG, s 205ZH, s 205ZJ, s 210A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms R G Davies
Respondent : Mr B W Ashdown
Solicitors:
Appellant : Preston Law
Respondent : Lewis Blyth & Hooper
Case(s) referred to in judgment(s):
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246
CDW v LVE [2015] WASCA 247
Hall v The Nominal Defendant (1966) 117 CLR 423
- MARTIN CJ:
1 (This decision was delivered extemporaneously on 12 April 2016 and has been edited from the transcript.)
2 The appellant, MCG, appeals to this court against a decision made by a family law magistrate dismissing her application to set aside orders with respect to property settlement made by the Family Court of Western Australia with the consent of the parties pursuant to s 205ZG of the Family Court Act 1997 (WA) (Act).
3 The application to set aside those orders was made pursuant to s 205ZH of the Act. Because the appellant and the respondent have never been married, issues with respect to the settlement of property interests following the termination of their relationship are governed by the Act rather than by the Family Law Act 1975 (Cth). In CDW v LVE,1 this court considered the extent of its jurisdiction to entertain appeals from the decisions of family law magistrates in circumstances such as these.
4 For the reasons enunciated in that case, this court has no jurisdiction to entertain appeals from decisions which are properly characterised as interlocutory and only has jurisdiction if the appeal is from a decision properly characterised as final. The reasons given in that case also address the criterion which is to be applied in order to determine whether or not the decision the subject of an appeal to this court is properly characterised as interlocutory or final.
5 Essentially, the criterion to be applied is whether the order as made finally determines the rights of the parties. In addressing that question the court is required to look to the legal rather than the practical effect of the judgment. So if, as a matter of law, the unsuccessful party could make a further application for the same relief, even though such an application may have very little prospect of success, the order is properly characterised as interlocutory rather than final, and this court has no jurisdiction to entertain the appeal under s 210A of the Act.
6 As I have noted, the appellant's application to set aside the order made by consent was made pursuant to s 205ZH of the Act. No provision of the Act limits the occasions upon which application may be made pursuant to that section. To the contrary, the section expressly provides for a variety of circumstances in which application may be made pursuant to its terms. In my view, it is implicit in the terms in which the section is
expressed that application may be made pursuant to the section on more than one occasion if and when differing circumstances arise which might enliven the jurisdiction conferred upon the relevant court by the section.
7 In support of a submission that no subsequent application could be made following dismissal of the application made pursuant to s 205ZH of the Act, counsel for the appellant referred this court to s 205ZJ of the Act. That section provides:
In considering what order to make in a proceeding under this Division, other than under section 205ZA, a court must, as far as practicable, make such orders as will finally determine the financial relationships between de facto partners who are no longer in a de facto relationship and avoid further proceedings between them.
8 In my view, this section identifies a matter which a court must take into account when determining which orders should properly be made in order to finally determine the financial relationships between de facto partners. The section has nothing to say with respect to the nature and character of an order once made or with respect to the capacity of a party to apply to set aside that order pursuant to s 205ZH.
9 In my view, the power conferred by s 205ZH of the Act to apply to vary an order made by consent is analogous to the power to apply to set aside a judgment entered by default in civil proceedings. In Carr v Finance Corporation of Australia Ltd,2 the High Court held that a decision dismissing applications of that kind were interlocutory in character because it was theoretically possible for the applicant to apply again. For the same reason, the decision under consideration in Hall v The Nominal Defendant3 was also characterised as interlocutory.
10 As it is theoretically possible for MCG to again apply for an order setting aside or varying the orders made by consent, it follows that the decision from which she seeks to appeal is interlocutory in character rather than final. Accordingly, this court has no jurisdiction to entertain the appeal which must be dismissed.
11 NEWNES JA: I agree with Martin CJ.
12 MITCHELL J: I agree with Martin CJ.
1CDW v LVE [2015] WASCA 247.
2Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246.
3Hall v The Nominal Defendant (1966) 117 CLR 423.
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