Re DPRS

[2025] WASC 435

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   RE DPRS; EX PARTE DPRS [2025] WASC 435

CORAM:   SMITH AUJ

HEARD:   18 AUGUST 2025, 29 AUGUST 2025 & BY WRITTEN SUBMISSIONS FILED 10 SEPTEMBER 2025

DELIVERED          :   10 OCTOBER 2025

FILE NO/S:   CIV 1634 of 2025

MATTER:   IN THE MATTER OF DPRS

EX PARTE

DPRS

Applicant

Catchwords:

Judicial review - Urgent application for a stay of orders made by a Magistrate and an injunction prohibiting transfer of a property - Jurisdiction - Family Law - Whether Supreme Court has jurisdiction to review decisions of a judicial officer exercising federal jurisdiction invested by the Family Law Act 1975 (Cth)

Legislation:

Family Court Act 1975 (WA)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)

Result:

Application for urgent interlocutory relief dismissed
Application for judicial review dismissed

Category:    B

Representation:

Counsel:

Applicant : In person

Solicitors:

Applicant : N/A

Cases referred to in decision:

B v M [2024] WASCA 34

Bajaj v Magistrate Trevor Darge [2021] WASCA 218

G v B [2024] WASCA 158

Hayes v O'Sullivan [2001] WASC 55; (2001) 24 WAR 40

Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 123

LPDT v Minister for Immigration [2024] HCA 12; (2024) 98 ALJR 610

Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

S v S [2024] FCWAM 240

S v S [2025] FedCFamC1A 44

Sewell v Wilson [2010] WASCA 152

Wilson v Sewell [2009] WADC 151

SMITH AUJ:

The applications for urgent stay of orders and judicial review

1. The applicant applies for judicial review of decisions made by Magistrate Hall on 4 October 2024 (and subsequent orders made on 5, 18 and 20 December 2024). The application was filed on 18 June 2025 and requires an extension of time in respect of orders made on 4 October, 5 December and 18 December 2024.

2. The applicant principally seeks to challenge orders made in relation to the financial proceedings, made in the exercise of federal jurisdiction under the Family Law Act 1975 (Cth) in respect of an application made by the applicant's wife for an alteration of property interests following the breakdown of their marriage. Some of the orders sought to be challenged by the applicant also concern parenting orders.

3. On 18 August 2025, I heard an urgent application for a stay of the orders, and an injunction prohibiting the settlement of the sale of a property in Mandurah, the subject of the orders, as settlement of the sale was due to occur later that day.

4. After hearing the application, I dismissed the application for urgent relief. I then informed the applicant that if he wished to pursue his application for judicial review, he would have to first satisfy this court that it has jurisdiction to review a decision of a magistrate when making orders in respect of property of parties to a marriage under the Family Law Act.

5. After the applicant notified the court he wished to proceed with his application for judicial review, the issue whether the court has jurisdiction to grant the relief sought by the applicant was listed for an ex parte hearing on 29 August 2025.

The Family Court proceedings and the decisions sought to be challenged

1. On 4 October 2024, the applicant appeared before Magistrate Hall at a directions hearing. The applicant's wife was represented by counsel, and an independent children's lawyer also appeared. After hearing from the parties Magistrate Hall made interim parenting orders in terms of a minute of proposed final orders lodged by the independent children's lawyer on 2 October 2024, which orders were subject to:

   (a)any party making a written request to relist the remaining substantive proceedings by 17 December 2024; and

   (b)if such request was not received then the file would be referred to the presiding magistrate in chambers for final parenting orders.

2. On 4 October 2024, Magistrate Hall also made interlocutory orders relating to financial matters. These orders granted leave to the applicant's wife to proceed on an undefended basis in relation to financial proceedings and adjourned the financial matters for a hearing to 6 December 2024.[1] Although the applicant was present at that hearing, subsequently in reasons delivered on 20 December 2024, her Honour stated incorrectly that the applicant was not present at that hearing.[2]

   [1] S v S [2024] FCWAM 240 [24].

   [2] It is noted that in the transcript of the directions hearing on 4 October 2024 the applicant appeared in person, and answered questions put to her Honour.

3. It appears clear that the reason why the financial proceedings proceeded on an undefended basis was because the applicant had not complied with a number of programming orders made in the financial proceedings.[3]

   [3] S v S [2024] FCWAM 240.

4. The undefended hearing in relation to financial matters was administratively moved to 5 December 2024. On 29 November 2024 the applicant made an application by letter to be reinstated in financial proceedings. After hearing from the applicant, Magistrate Hall declined to allow the applicant to be reinstated in relation to those proceedings. It appears that central to the applicant's case was his contention that the parties had signed a 'Binding Financial Agreement'. However, the applicant had not filed nor discovered a copy of such a document to his wife despite orders having been made on at least two occasions for production.

5. As no written request to relist the remaining substantive proceedings was made by any party by 17 December 2024, Magistrate Hall made final parenting orders on 18 December 2024 which provided for the applicant's wife to have sole decision‑making responsibility, for the children to live with her and to spend time with the applicant on a supervised basis.[4]

   [4] S v S [2024] FCWAM 240 [32] - [33].

6. Although the financial proceedings was heard on an undefended basis the applicant appeared at the hearing.[5] Although her Honour declined to let the applicant actively participate in the hearing, Magistrate Hall had regard to documents he had provided to the court.

   [5] S v S [2024] FCWAM 240 [25] - [31].

7. On 20 December 2024, the Magistrate delivered reasons for decision and made final orders in the financial proceedings (final alteration of property orders).[6] The orders appointed the applicant's wife as sole trustee for sale of the family home, and pursuant to s 106A of the Family Law Act she was conferred with the power to execute the documents in the name of the applicant to sell the property and to do what other acts and things to be necessary to give validity and operation to the documents. The orders required the applicant to vacate the property within 60 days and by no later than 16 February 2025. Other orders were made as to the proceeds of sale, which provided that after the mortgage was discharged and payment of agent commissions and other fees such as the payment of the Legal Aid Memorial held against the property the remaining balance was to be paid as to 65% to the applicant's wife and 35% to the applicant.

   [6] S v S [2024] FCWAM 240 [83].

8. On 16 January 2025, the applicant filed an appeal in the Federal Circuit and Family Court of Australia against the final alteration property orders made on 20 December 2024. Orders were made by the Federal Circuit and Family Court of Australia on 19 February 2025 for the filing of various documents in the appeal. These included orders for the applicant to file an appeal book and consolidated electronic transcript by 4.30 pm western standard time on 7 March 2025, and if there was non‑compliance with the orders that the appeal would be taken to be abandoned.

9. The applicant was unable to comply with the orders as the transcript he had ordered had not been provided to him in time, and the appeal was taken to be abandoned by the Federal Circuit and Family Court of Australia.

10. The applicant then made an application on 11 March 2025 to the Federal Circuit and Family Court of Australia to reinstate his appeal, and for an extension of time within which to file and serve a copy of the transcript.

11. The application to reinstate the appeal was heard on the papers. On 14 March 2025, Austin J dismissed the application and delivered reasons for decision.[7] In determining the application his Honour considered the merits of the grounds of appeal, which grounds in essence raised the same issues which the applicant seeks to raise in this application for judicial review in respect of the alteration of property orders. It is noted that the applicant did not seek to raise any issue in that appeal which related to the validity of the marriage, and whether the Magistrate should have exercised power to make the orders under the Family Law Act.

    [7] S v S [2025] FedCFamC1A 44.

12. On 2 May 2025, the Magistrate issued a warrant in favour of the applicant's wife for vacant possession of the property the subject of the financial proceedings.

The applicant's grounds for judicial review

1. The central point in the applicant's grounds of review is a claim that he was denied procedural fairness when the decision was made on 4 October 2024 to proceed with the financial proceedings on an undefended basis, and that this conduct amounted to jurisdictional error.

2. The applicant's grounds of judicial review are as follows:

   1.A number of decisions were made on the basis of a material factual error, namely that the applicant was not present at the hearing on 4 October 2024, when he was.

   2.The error, among a number of others, were used to justify adverse findings, including orders stripping the applicant of financial agency and parenting rights.

   3.The reasons for decision include numerous mischaracterisations, factual inaccuracies, and misrepresentations of the applicant's conduct, which have contributed to a reasonable bias, and arguably give rise to actual bias on the part of a judicial officer.

   4.The applicant was denied procedural fairness and natural justice, including not being given an adequate opportunity to be heard.

   5.All subsequent applications by the applicant were dismissed without reasoned consideration.

   6.The conduct amounts to jurisdictional error and constitutes a miscarriage of justice.

   7.There is a real and imminent risk of irreparable harm, including homelessness and deprivation of property, if enforcement proceeds.

3. At the heart of the applicant's claim is a complaint that the property in question, the family home, was sold under value. The applicant points to evidence accepted by Magistrate Hall that the property was valued at about $600,000 (with equity of approximately $404,004).[8] The applicant claims that subsequent to the final alteration of property orders being made on 20 December 2024 a contract for the sale of the property had been entered into for the sum of $408,000. It was on this basis that the applicant made an application for a stay and an injunction on 15 August 2025 to prevent the settlement of the sale on 18 August 2025.

The applications for a stay, injunctive relief and submissions made in respect of the jurisdictional issue

[8] S v S [2024] FCWAM 240 [72] - [73].

1. The applicant made three ex parte applications to stay the orders made by Magistrate Hall in this court, including two applications for an injunction to prevent the sale of the property from proceeding, which orders if made would have prevented the transfer of the family home to a third party, and the disbursement of funds in accordance with the orders made by Magistrate Hall on 20 December 2024.

2. The first application for a stay was heard by Lemonis J on 19 June 2025. His Honour declined to make such an order and instead made orders that the applicant file an affidavit by 26 June 2025 explaining what had occurred in relation to the appeal to the Federal Circuit and Family Court of Australia. This order was made because prior to hearing of that stay application the applicant had filed a very brief affidavit dated 8 May 2025, which affidavit was insufficient as to the relevant factual matters relied upon by the applicant. In addition, the applicant did not annex to his affidavit any copies of the orders the applicant sought to have reviewed, or copies of any transcript, reasons for decision or other relevant documents.

3. In the meantime, on 11 July 2025 the applicant made an application to the Family Court (WA) for a stay of the property proceedings orders, pending determination of the application for judicial review. That application was listed for hearing before Magistrate Hall on 22 July 2025.

4. On 22 July 2025, Magistrate Hall made orders dismissing the applicant's application for a stay, and otherwise dismissing all outstanding proceedings.

5. In the interim, before the application for a stay could be heard by Magistrate Hall a second application for a stay was heard in this court by Hill J on 16 July 2025. By this time the applicant had filed an affidavit on 3 July 2025 annexing a number of documents, including the decision of Austin J,[9] and a copy of the transcript of the proceedings in the Family Court on 4 October 2024. Shortly prior to the hearing on that day, the applicant filed a copy of the reasons for decision given by the Magistrate on 20 December 2024. By this time also the applicant was aware the property had been sold so he also sought an injunction prohibiting the sale of the property.

   [9] S v S [2025] FedCFamC1A 44.

6. After hearing the applicant on 16 July 2025, Hill J dismissed the applicant's second application for a stay and the applications for an interlocutory injunction.

7. Her Honour assumed without deciding that this court has the power to review a decision of a magistrate in the exercise of federal jurisdiction under the Family Law Act. Hill J found it unnecessary to decide this point as her Honour was not satisfied that the applicant's application for judicial review had reasonable prospects of success.

8. In circumstances where the decision of Austin J[10] was a final decision of a superior court exercising appellate jurisdiction binding on the applicant, and where there had already been a consideration of the applicant's arguments he sought to raise in the application for judicial review, her Honour was not satisfied that the applicant had reasonable prospects of success that would warrant the granting of a stay, or interim interlocutory relief.

   [10] S v S [2025] FedCFamC1A 44.

9. Her Honour went on to deal with the balance of convenience and had regard to the fact that the proceedings in the Family Court (WA) had been ongoing since 2020 and that the interests of the applicant's former wife as well as the purchaser of the property were likely to be prejudiced by any delay that would follow from a stay being granted pending determination of the judicial review application. Her Honour also had regard to the fact that the applicant's wife had not been served with a copy of the application for judicial review.

10. Before adjourning, Hill J informed the applicant that he was required to file copies of each of the orders made by Magistrate Hall he sought to challenge, including any orders relating to parenting orders, and once that was done he was to contact the court to request the substantive application for judicial review be listed for hearing.

11. The applicant did not file any further documents in this court until late on Friday, 15 August 2025 when he made a further application for an urgent stay and injunction on the basis that settlement was due to occur on Monday, 18 August 2025. Although the applicant did not formally file any further documents, he sent a series of emails to the court attaching a copy of his application for a stay to the Family Court (WA), copies of emails he had sent to the Family Court (WA) after that application was made, and a copy of orders made by Magistrate Hall on 22 July 2025.

12. The reason why I dismissed the applicant's third application for a stay on 18 August 2025, and declined to order an injunction prohibiting the settlement of the sale of the property was because I was not satisfied that there was a prima facie case that the Supreme Court of this State has jurisdiction to review the decisions sought to be challenged which are orders made in the exercise of federal jurisdiction under the Family Law Act.

13. In addition, even if I had been satisfied that this court has jurisdiction to review the decisions of Magistrate Hall, I was not satisfied it would be appropriate for this court to make injunctive orders prohibiting the completion of the transfer of a property pursuant to the terms of a contract for sale, where neither the applicant's wife nor the person to whom the property was to be transferred had been served with the application for interlocutory relief.

14. At the hearing of the preliminary jurisdictional point in the substantive hearing on 29 August 2025, the only point raised by the applicant that properly went to the jurisdiction of this court to grant relief was a contention that his marriage was not valid. The applicant raised this contention when it was put to him that the Family Court (WA) has exclusive jurisdiction to deal with property of a marriage. In response, the applicant stated that although he was 'still married' he had disputed the validity of his marriage in the Family Court (WA) proceedings.[11]

    [11] ts 72.

15. After it was put to the applicant that the financial and parenting orders made by Magistrate Hall were made pursuant to the Family Law Act, and not the State Family Court Act 1997 (WA), and in the documents he had lodged in the Family Court (WA), he described himself as 'husband', the applicant said he ticked the boxes describing him as such as he did not think there was any other option. He then went on to say that he had been coerced into marriage by his wife who instructed him that they were getting married.

16. Irrespective of whether such a circumstance could constitute grounds to challenge the validity of a marriage, the applicant has not provided any evidence that indicates that a claim of invalidity of the marriage was made in the Family Court proceedings.

17. Following the hearings on 18 and 29 August 2025, the applicant was provided with an opportunity of providing additional Family Court (WA) documents in support of his application for judicial review.

18. The applicant took up that opportunity by providing copies of additional documents lodged in the Family Court (WA) and other orders made by Magistrate Hall. The applicant also provided lengthy written submissions on 10 September 2025.

19. However, all of the points raised by the applicant, the information stated in the documents lodged in the Family Court (WA) and the evidence he referred to in his submissions do not address the jurisdictional issue and go only to the merits as to why he contends the orders were incorrectly made.

Disposition - Limits of the Supreme Court supervisory judicial review jurisdiction

General principles - judicial review

1. To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction.[12] That is, the decision‑maker makes a decision outside the limits of the functions and powers conferred on him or her or does something which he or she lacks the power to do.[13]

   [12] Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 123 [24] (Kiefel CJ, Gageler & Keane JJ).

   [13] Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J).

2. The jurisdiction of the Supreme Court to supervise a decision made by a judicial officer does not extend to reviewing whether a decision‑maker has incorrectly decided something which the decision‑maker is authorised to decide. Jurisdictional error arises if the decision‑maker makes a decision outside the limits of the functions and powers conferred on him or her or does something which he or she lacks power to do.[14]

   [14] Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J); applied in Bajaj v Magistrate Trevor Darge [2021] WASCA 218.

1. In addition, in respect of any legal errors which the judicial officer might have made must be material in order to justify this court interfering with the primary orders. In the context of judicial review for jurisdictional error, including a failure to accord procedural fairness, it is recognised that generally error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.[15] Materiality in this sense must also generally be demonstrated before an error of law will justify this court on appeal disturbing the orders made by a primary court.[16]

Does this supervisory jurisdiction extend to orders made by a Family Court of Western Australia (WA) solely exercising federal jurisdiction

[15] G v B [2024] WASCA 158 [64] ‑ [65]; applying LPDT v Minister for Immigration [2024] HCA 12; (2024) 98 ALJR 610 [7].

[16] G v B [2024] WASCA 158 [64].

1. Pursuant to s 38 of the Family Court Act a court of summary jurisdiction constituted by a magistrate or a family law magistrate has the federal jurisdiction with which it is invested by or under the Commonwealth Family Law Act.

2. For reasons that follow, the jurisdiction of a magistrate in respect of alteration of property interests and parenting orders made pursuant to the Family Law Act is exclusive in the sense that it excludes the jurisdiction of the Supreme Court of Western Australia to make orders in respect of the same subject matters.

Alteration of property interests orders

1. Section 8 of the Family Law Act provides that proceedings by way of a 'matrimonial cause' shall not be instituted except under the Family Law Act. 'Proceedings' are defined in s 4 to mean 'a proceeding in a court, whether between parties or not'.

2. A 'matrimonial cause' is defined in s 4 of the Family Law Act to relevantly include:[17]

   (ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

   (i)arising out of the marital relationship;

   [17] (my emphasis).

3. The Family Court (WA) (and a magistrate in Western Australia) is invested with exclusive federal jurisdiction under s 8 of the Family Law Act in respect of subpar (ca)(i) of the definition of matrimonial cause in s 4(1).[18]

   [18] Family Law Act 1975 (Cth) s 4 'matrimonial cause' (ca(i)).

4. Under s 39(2) of the Family Law Act a 'matrimonial cause' (other than proceedings of a kind referred to in subpar (a)(ii) or par (b) of the definition of 'matrimonial cause' in s 4(1)) may be instituted under the Family Law Act in a court of summary jurisdiction of a State or Territory.

5. The effect of s 8 of the Family Law Act is that, in the absence of any specific provision in the Family Law Act, this court has not been conferred with jurisdiction to hear and determine any proceeding which would include an application for judicial review to review any interlocutory or final orders made by the Family Court (WA) with respect to property of parties of a marriage. Such orders can only be made by the Family Court (WA) or a magistrate in the exercise of their federal jurisdiction in respect of a 'matrimonial cause'.

6. The issue whether a court in Western Australia other than the Family Court (WA) has jurisdiction to deal with and determine a claim that is a 'matrimonial cause' was considered in Wilson v Sewell by the District Court of Western Australia.[19] In that matter, the primary judge rejected an argument that the District Court had no jurisdiction to deal with a claim between a divorced husband and wife in respect of a claim in contract as to the sale and maintenance of a property.[20] An appeal against this decision was successful. The Court of Appeal found that the proceedings in the District Court arose out of a marital relationship within the definition of a 'matrimonial cause' and thus was a claim that could only be instituted within the exclusive jurisdiction of the Family Court (WA), and was not a claim that could be instituted in or determined by the District Court.

   [19] Wilson v Sewell [2009] WADC 151.

   [20] Wilson v Sewell [2009] WADC 151.

7. In Sewell v Wison, Newnes JA, relevantly observed that the phrase 'with respect to' the property of parties to a marriage':[21]

   [H]as been described, in an oft‑cited passage, as having 'the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer': Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110, 111; although in Workers' Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642, 653, Deane, Dawson and Toohey JJ considered that this was 'going somewhat too far.' Their Honours pointed out that the phrase must take its meaning from its particular statutory context. Nevertheless it is 'of broad import': O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, 374. In O'Grady, McHugh J said that it 'requires no more than a relationship, whether direct or indirect, between two subject matters'.

   [21] Sewell v Wilson [2010] WASCA 152 [37] (Buss & Murphy JJA agreeing).

8. The effect of the findings made by the Court of Appeal in Sewell v Wilson were recently summarised by the Court of Appeal in a matter involving the non-federal jurisdiction of the Family Court (WA) in B v M:[22]

   [22] B v M [2024] WASCA 34 [177] - [181].

   Sewell v Wilson concerned the Family Court's federal jurisdiction. Former spouses (ie husband and wife) entered into an alleged oral contract. This ostensibly provided the husband with payment for work undertaken on the matrimonial home. In reality it gave effect to an agreed property settlement between the parties rendering Family Court proceedings unnecessary. The husband later brought proceedings in the District Court for breach of contract. The wife argued that the District Court did not have jurisdiction to hear the matter on the basis that it was a 'matrimonial cause' and therefore within the exclusive jurisdiction of the Family Court.

   Two provisions of the FLA were material to the decision:

   1.The term 'matrimonial cause' was relevantly defined in s 4(1)(ca)(i) of the FLA to mean proceedings between parties to a marriage with respect to the property of the parties or either of them being proceedings arising out of the marital relationship.

   2.Section 44(3) of the FLA relevantly provided that where, as in Sewell v Wilson, more than 12 months had elapsed since the parties' divorce, proceedings under s 4(1)(ca) could only be commenced with the leave of the Family Court. Such leave will not be granted unless, among other things, the Family Court is satisfied that hardship would be caused to a party to the marriage, or a child, if leave were not granted (FLA s 44(4)).

   In Western Australia the Family Court had exclusive jurisdiction in relation to a matrimonial cause as defined in s 4(1)(ca)(i) of the FLA.

   The court held, in effect, that the proceedings were in substance a matrimonial cause (being intended to circumvent the need for a property settlement in the Family Court) and therefore were not within the jurisdiction of the District Court. Separately the husband argued that at the time the contract was entered into the Family Court did not have jurisdiction with respect to the marital property. This was because the 12‑month period specified in s 44(3) of the FLA had elapsed and any application for a property settlement could only be brought with the leave of the court or by consent. In this respect the parallel with the appellant's 'timing issue' argument as contended for in support of ground 1 is obvious.

   Newnes JA (Buss & Murphy JJA agreeing) rejected the argument in peremptory terms. His Honour stated:

   I do not consider there is any merit in that submission. The Family Court (WA) clearly continued to have jurisdiction. The fact that, because of the lapse of time, the leave of the Family Court (WA) had to be obtained before the [husband] could invoke the jurisdiction did not mean that the Family Court (WA) had ceased to have jurisdiction.

9. Since the time of the hearing of the appeal in Sewell v Wilson in 2010, the provisions of the Family Law Act have been amended and re‑numbered. However, the scheme in place at that time which had been in place since the coming into operation of the Family Court Act 1975 (WA) (repealed) remains the same in that the Family Court (WA) and a magistrate in Western Australia has exclusive jurisdiction with respect of proceedings in respect of a 'matrimonial cause'.

10. The relevant current provisions of the Family Law Act which maintain this scheme of exclusive jurisdiction are as follows.

11. The Family Court (WA) was established as a State court by the Family Court Act 1975 (WA). It continues by the operation of the Family Court Act 1997 (WA) and has been vested with both federal and non‑federal jurisdiction under the Family Law Act, by a proclamation made by the Governor General on 27 May 1976, as provided for in s 41(2) of the Family Law Act.[23] This proclamation was revoked by a subsequent proclamation made by the Governor General on 4 November 1991 which declared again that under s 41(2) of the Family Law Act that, on and after 5 November 1991, s 41 of the Family Law Act applies to the Family Court (WA).[24]

    [23] Australian Government Gazette, No S 86 (27 May 1976).

    [24] Australian Government Gazette, No S 300 (5 November 1981).

12. Although s 39(1) of the Family Law Act vests jurisdiction in 'matrimonial causes' in both the Federal Circuit and Family Court of Australia (Division 2) or the Supreme Court of a State, the jurisdiction of this Supreme Court has been excluded and instead vested in the Family Court (WA) by the operation of the forementioned proclamations made by the Governor General.

13. Pursuant to s 41(3) of the Family Law Act, by virtue of those proclamations, proceedings so instituted in accordance with a provision of the Family Law Act, as if references to s 39, s 46, s 47A and s 47B of the Family Law Act, and s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to the Supreme Court of this State in those provisions, is a reference to the Family Court (WA), and the Family Court (WA) is invested with federal jurisdiction accordingly.

14. Thus, where a matter within the scope of a 'matrimonial cause' is raised in proceedings in this court and irrespective of whether a remedy is sought that is different to a remedy that could be sought in the Family Court (WA), the jurisdiction of this court is ousted insofar as the matter raised is within the scope of a 'matrimonial cause'. Put another way, the jurisdiction of this court is ousted if the remedy sought is 'with respect to property or parties to a marriage'.

15. An authority which demonstrates this point is the decision of Roberts‑Smith J in Hayes v O'Sullivan. In that matter, his Honour found this court had no jurisdiction to extend a caveat over property in the caveat proceedings as the plaintiff's interest in property in question was claimed to arise in relation to property settlement proceedings instituted in the Family Court (WA).[25]

    [25] Hayes v O'Sullivan [2001] WASC 55; (2001) 24 WAR 40.

16. In Hayes v O'Sullivan, the plaintiff, a party to property settlement proceedings in the Family Court (WA), lodged a caveat over land in which the plaintiff claimed a 60% beneficial interest pursuant to s 79 of the Family Law Act. The relevant interest sought to support the caveat was that of beneficiary under a constructive trust arising by virtue of the plaintiff's contribution towards the maintenance, conservation and improvement of the land in question. Roberts‑Smith J found that the proper test for determining whether a proceeding to extend a caveat over land is a 'matrimonial cause' was not whether or not the Family Court (WA) would have jurisdiction to extend or remove a caveat lodged by a spouse in respect of matrimonial property under the Transfer of Land Act 1893 (WA), but whether the proceeding in the Supreme Court fell within the definition of 'matrimonial cause' in s 4(1) of the Family Law Act.[26]

    [26] Hayes v O'Sullivan [2001] WASC 55; (2001) WAR 40 [59] - [60].

17. Importantly, in this application the applicant sought a stay of orders and an injunction prohibiting the completion of the sale of property made pursuant to orders made with respect to the property of the marriage, which orders were within the exclusive jurisdiction of the Family Court (WA) and a magistrate exercising power under s 79 of the Family Law Act.

18. Section 79(1) of the Family Law Act confers power on the Family Court (WA) and a magistrate in property settlement proceedings to make such order as it considers appropriate altering the interests of the parties to the marriage in the property. In this State it is only the Family Court (WA) and a magistrate that can make such orders, not this court, as it has not been conferred with any jurisdiction to make any orders in any proceeding with respect to the property of the parties to a marriage. Clearly, the orders sought by the applicant in this application, would if made, alter the effect of the financial proceedings orders, including the final alteration of property orders.

19. In addition, it is important to observe that the applicant had a right of appeal against the final alteration of property orders made by Magistrate Hall on 20 December 2024 to the Federal Circuit and Family Court, which right he did exercise in early March 2025. Although that appeal was deemed to be abandoned, he did make an application to reinstate that appeal and for an extension of time to file the relevant transcript. That application was dismissed by Austin J of Division 1 of the Federal Circuit and Family Court sitting in Newcastle in New South Wales. The dismissal of that application exhausted the applicant's right of appeal in respect of that order and the earlier interlocutory financial proceedings programming orders.

20. In effect, it is strongly arguable that by seeking the remedies the applicant seeks in the judicial review proceedings, at least in respect of the final alteration of property interests orders, the effect constitutes not only a review of the orders and grounds application as heard and determined by Austin J on the merits, but also is a collateral attack on a decision made by a judge in not only in the federal jurisdiction but also in another State in circumstances where that judge is not a judge of the Family Court (WA). Irrespective of whether this court has supervisory jurisdiction over magistrates and judges of the Family Court (WA), such a collateral attack cannot be entertained by this court as it has no jurisdiction over any judicial officer who is not a judicial officer of the State of Western Australia.

21. Even if it were the case that this court had jurisdiction to undertake judicial review of the financial proceedings orders of Magistrate Hall, judicial review is a discretionary remedy. Therefore, even if I were persuaded, which I am not, that the court was able to undertake a judicial review of the orders of a magistrate made pursuant to exclusive federal jurisdiction under the Family Law Act, I would need to be persuaded that it was appropriate in the circumstances to exercise the court's discretion. In circumstances where the applicant had a right of appeal, which he exercised, and although his appeal was deemed to be abandoned, the merits of his appeal was considered by a judicial officer, I would not exercise my discretion.

Parenting orders

1. The applicant's application includes a challenge to interim parenting orders made by Magistrate Hall on 4 October 2024 and the final parenting orders made 18 December 2024.

2. Under s 69J of the Family Law Act each court of summary jurisdiction of each State (namely a magistrate in Western Australia) is invested with federal jurisdiction in relation to matters arising under pt VII (Children) (other than proceedings for leave under s 60G).

3. In respect of orders concerning children of the marriage, s 69H of the Family Law Act confers federal jurisdiction on the Family Court (WA) in relation to matters arising under pt VII of the Family Law Act.

4. For the Supreme Court of this State to have jurisdiction in respect of children of the marriage, it must be a court that is invested with such federal jurisdiction to deal with s 69GA proceedings by being prescribed in regulations as a court of a State pursuant to s 69GA(2A). However, no such regulation has been made prescribing this court as a court vested with this jurisdiction.

5. In any event, even if this court had jurisdiction to review the parenting orders the applicant would be unable make out a case for review. Although the basis for the challenge to parenting orders was not clearly stated in the application of judicial review, at the hearing on 29 August 2025, the applicant informed the court that he was challenging those orders on the basis that what was in the best interests of the children had never been assessed on the merits.[27]

   [27] ts 63 - 64.

6. However, the applicant concedes that he did not make a written request to relist the parenting proceedings before the parenting orders were finalised.[28]

Application for a stay and injunctive relief should be refused and the applications for judicial review dismissed

[28] ts 64 - 65.

1. For these reasons, the applicant's application for a stay of the final property orders made on 20 December 2024, and an injunction prohibiting the settlement of the property in question proceeding, was dismissed.

2. For these reasons also, the application for judicial review should be dismissed for want of jurisdiction.

3. No order as to costs arises as the applications were heard ex parte.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SO

Associate to the Honourable Smith AUJ

10 OCTOBER 2025