Isakson & Isakson  [2025] FedCFamC1A 65

This was another attempted appeal from a Magistrate (Magistrates Court of Western Australia) and involved a s65DAAA matter.  It was heard by His Honour, Austin J, and Judgment delivered on 14 March 2025.

The appellant was the father who sought to revisit earlier Final Parenting Orders made by consent in December 2020, when the subject child was around five and a half years of age.  In determining the s65DAAA issue regard was had to the Single Expert Report prepared for the earlier proceedings, such report having raised some concerns in respect of the father’s then mental health.  The appellant father argued that the Magistrate ought not have had regard to that earlier report.  The appellant was, in fact, out of time, but by only five days, and therefore filed an Application in an Appeal seeking leave to file that Appeal out of time.

The existing Orders for the now eight-and-a-half-year-old child provided substantial time with the father of five nights per fortnight, probably as close to equal time as could be expected.  The father sought, inter alia, an increase in time and a change in the child’s schooling, a school which had been the mother’s choice in the previous proceedings but with which he had then agreed.  The mother argued that there was no change in circumstances.

The Magistrate determined the threshold test ‘on the papers’, therefore without cross examination but taking the father’s evidence at its highest.  The father argued in his case, an improvement in his mental health along with views allegedly expressed by the child.  His application was dismissed, hence this attempt at an appeal.

Section 65DAAA (2)(a) expressly permits the taking into account of material upon which a previous parenting order was made and accordingly, the father’s challenge to use of the previous Single Expert Report was doomed to failure.  The father argued that in effect the Single Expert Report was not had regard to in the previous proceedings as the Final Orders were made by consent on the last day of the trial.  However, the father had relied upon fresh expert evidence to counter that Single Expert’s evidence and therefore must have envisaged that the Magistrate would have regard to same.  The father ultimately abandoned this ground of the appeal.

Ground 1 of the father’s appeal was slightly complex in that it alleged that the Magistrate could decide whether there had been a significant change of circumstances (s65DAAA(1)(a)) without having regard to section 65DAAA(2).  That would essentially require the Magistrate to ‘guess’ as there would be no material upon which to make that determination.  This ground failed which had the follow-on effect of negating Ground 2 which alleged that the Magistrate failed to give sufficient reasons.

The Application in an Appeal was dismissed with the father ordered to pay the mother’s costs in the fixed sum of $1,000.