Appeals in Western Australia – 11/08/2025

The creation of the then Family Court by the passing of the Family Law Act, 1975, required each of the states to refer their governance of ‘matrimonial causes’ to the Federal Government.  The Western Australia state government was not so keen on that idea and retained matrimonial causes within state jurisdiction.  Accordingly, that Court operates as the Family Court of Western Australia (‘FCWA’) and with its own legislation the Family Court Act 1997 (FCA).  Further, although the Federal Circuit and Family Court (Family Law) Rules 2021 do apply in Western Australia, the state has its own set of Rules, being the Family Court Rules 2021 (WA), which take precedence where any inconsistency exists.

In August 2025, in the case of Dunne -v- Lloyd [2025] WASCA 119 (‘Dunne -v- Lloyd’), the Supreme Court of Western Australia (SCWA) was asked to make a determination as to where appeals lie from the Family Court of Western Australia.  That is, did Division 1 of the Federal Circuit and Family Court of Australia (‘FCFCA’) have jurisdiction, or was it the SCWA?

Dunne -v- Lloyd involved proceedings relating to an ex nuptial child where the parents lived in different states.  The appellant mother was residing in Perth and the respondent father was residing in rural South Australia.  In the primary proceedings Orders were made for the five-year-old child to reside primarily with the father, with limited access to the mother, which was a reversal of the child’s living arrangements prior to trial.  The mother then appealed those Orders and the Attorney General for Western Australia joined as an Intervener, pursuant to s78B of the Judiciary Act 1903 (Cth).

The Court found that as the parents were unmarried and that:

“… the applicable State law is contained in Part 5 of the FCA.  Part 5 prescribes the State law where there is a child of unmarried parents, the child is present in the State and one parent is resident in the State: s 36(2) and (3) of the FCA.  These conditions were all met in this case at the time of the trial. It follows that, in hearing and determining this case, the trial judge was exercising federal jurisdiction, but applying State statute law in the exercise of that jurisdiction.”

The Court was in agreement that as the proceedings related to an ex nuptial child then the appropriate forum for the appeal was the Supreme Court of Western Australia and not the Federal Circuit and Family Court of Australia (Division 1).