Practitioners and parties must carefully adhere to court-imposed filing deadlines and directions.
The appeal pathway from the FCWA is complex, and depends on the decision maker, the legislation (Family Court Act 1975 (Cth) or Family Court Act 1997 (WA)), and whether the order is interlocutory or final. Most parenting orders will be interlocutory in nature, even if they appear to be final orders.
Background
A readiness hearing was listed for August 2025.
The parties attended a Legal Aid ADR in January 2025 and reached an interim agreement. This agreement included the children living primarily with the Father and other ancillary orders, attendance at a further ADR in mid-2025, and to adjourn the readiness hearing until December 2025. Orders were made by consent to this effect in February 2025.
The Court directed that by 1 September 2025, the ICL update the Court as to the ADR conference.
The ICL did not do so.
On 2 September 2025, the Court wrote to all parties and referred to the direction made in February. An order was made in Chambers that if a request to relist was not received by 4pm on 15 September 2025, the file be referred to the presiding magistrate in chambers for final orders to be made in terms of the interim parenting arrangements from the February 2025 orders, and the proceedings dismissed (the “Finalisation Order”).
On 8 September 2025, the Mother’s lawyer wrote to the Court advising that the ADR would be convened in November or December, and requested that the Court “…defer the finalisation date to in or around early January 2026, unless either party makes a further request to relist the matter prior to that time…”
On 15 September 2025, the Court sent a letter to the Mother’s lawyer advising:
· The 8 September letter was rejected and removed from the Court file;
· It was not clear on the face of it that the letter had been copied to the other parties;
· The request to extend the finalisation date to 30 January 2026 should be accompanied by the consent of the other party and the ICL.
By 22 September 2025, no request to relist the proceedings having been filed, final orders were made in Chambers pursuant to the Finalisation Order (the “Final Orders”).
Review and appeals
The Mother filed a Form 2 seeking a review of the Registrar’s decision.
The Form 2 was rejected for filing, on the basis that the Final Orders were made by a Magistrate not a Registrar, therefore not subject to review.
The Mother’s lawyer then filed an Appeal Notice in the WA Court of Appeal.
On 23 October 2025, the Associate to the Court of Appeal Registrar wrote to the Mother, and referred to the conditions in Section 210A of the Family Court Act 1997 (WA), and observed that where the conditions were not met, the appeal from a Magistrate is to be made to the FCWA under Section 211. The Associate directed the Mother’s lawyer to the case of CDW v LVE [2015] WASCA 247, and suggested that a discontinuance notice be filed.
On 6 November 2025, the FCWA rejected the Mother’s Notice of Appeal on the basis that it was filed out of time.
On 6 November 2025, the Mother’s lawyer wrote to the Court of Appeal, advising there was a “potential Jurisdictional issue” with the FCWA, which has “…previously advised that the orders in question are final rather than interlocutory…” The solicitor proposed “to preserve (their) client’s avenues of relief” by filing a Notice of Appeal in the FCWA, and then jurisdiction when confirmed, filing a notice of discontinuance in the Court of Appeal.
In early November 2025, the Mother filed a Form 2 seeking leave to file a Notice of Appeal out of time.
FCWA discussion
Justice Berry confirmed that the FCWA only has jurisdiction to entertain an appeal against a decree made by a family law Magistrate if the decree is an interlocutory order and leave to appeal as granted.
In CSW v LVE, the WA Court of Appeal observed that parenting orders were in effect interlocutory in nature, as they did not finally determine the rights of the parties. The Court referred to Rice v Asplund, and observed that a party may still make a further application for the same relief.
Justice Berry considered the legislative pathway, including Section 89AAA “Reconsideration of parenting orders” (equivalent to FLA s65DAAA) which had come into effect subsequent to the case of CDW v LVE, and Rules 5 – 8, 15, 171, 172, 173 and Rule 311 which deal with the purposes of the Rules, the Court’s general powers, and case management.
His Honour observed the Section 5(1) of the Acts defines a “final parenting order” to include “a parenting order that is an interlocutory order if the parenting order is not expressed to be an order until further order”. However, the Court opined that the term “final parenting order” was only intended to be used in the context of Section 89AAA, and not Part 7 of the Rules dealing with appeals, which only referred to an “interlocutory order”.
The Court observed that the Final Order was a “final parenting order” in terms of the definition in Section 5(1), as well as an order to which Section 89AAA may apply.
However, as set out in the CDW v LVE, the Final Orders in this case were deemed interlocutory in nature due to the operation of Section 89AAA, which permits a person to file a fresh Form 1.
The Court considered the principles governing an extension of time to appeal in Simonsen v Legge [2010] WASCA 238, and allowed the extension of time.
However, the Mother still required leave to appeal. The Court considered the two factor approach adopted in Goldon v Stinson (No 2) (2023) FLC 94-134, being:
· whether the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration; and if so
· whether a substantial injustice would occur if leave were not granted.
The Court also considered the application of the exercise of discretion in House v The King (1936) 55 CLR 499.
The Court observed that “The mother could simply have requested a relisting of the proceedings…” as per the orders on 2 September, and the letter from the Court on 15 September 2025. The Court reviewed the history of the proceedings, and the events leading to the Final Orders, and observed that the Final Orders “should have been an outcome expected by the parties”.
At [93], the Court stated (our emphasis added): “…Finalisation orders are a significant case management tool in the Court’s management of proceedings for parenting orders. All parties, especially those who are legally represented, are reminded of the importance of compliance with the Case Management Guidelines, Rules 5-8 and with Court orders generally.”
Leave to appeal was not granted.
Notes
The Mother may have grounds to re-open proceedings if Section 89AAA is satisfied.
Practitioners are reminded to read and diarise court directions carefully.
The appeal pathway from the FCWA is complex. As a first point of reference, practitioners are directed to the FCWA website, and in particular the tab “Types of appeals”: https://www.familycourt.wa.gov.au/A/appeals.aspx