APPLICATION IN AN APPEAL - Where the mother seeks an extension of time to apply for leave to appeal against parenting orders made by way of a finalisation order by a family law Magistrate and to file a Notice of Appeal out of time - Consideration of the Court's jurisdiction to hear appeal - Consideration of whether final parenting orders are interlocutory in nature with reference to CDW v LVE [2015] WASCA 247 - Consideration of s 89AAA of the Family Court Act 1997 (WA) and Rice & Asplund (1979) FLC 90-725 - Where the Court finds that the mother's appeal, if permitted to be pursued, is unlikely to succeed on the proposed ground - No utility in granting an extension of time to file a Notice of Appeal - Leave to appeal refused - Application dismissed

Family Court Act 1997 (WA)

Family Court Rules 2021 (WA)

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burton and Mafi has been approved by the Family Court of Western Australia pursuant to s 236B(2) of the Family Court Act 1997 (WA).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Section 243 of the Family Court Act 1997 (WA) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1. The respondent mother, [Kailani Mafi], filed a Form 2 Application [in early] November 2025, seeking an extension of time to apply for leave to appeal against orders made by a family law Magistrate (the primary Judge) in Chambers on 22 September 2025 (the primary orders) and to file a Notice of Appeal out of time.
2. The applicant father, [John Burton] filed a Form 2A Response [in late] November 2025, seeking to dismiss the Form 2 Application.
3. At the oral hearing, both parties expressly did not pursue other relief which each otherwise sought in the respective application and response.
4. For the reasons which follow, the Court will dismiss the mother's application for an extension of time to file a Notice of Appeal and will also dismiss the application for leave to appeal.

1. This section of the Court's reasons is informed by a brief survey of the Court file and the affidavits filed by each party in respect of the current application and response before the Court.
2. The father was born in [month redacted] 1989 and the mother was born in [month redacted] 1992. The parties commenced living together in September 2010 and separated in April 2016. There are two children of the relationship, [Child A] born in [month redacted] 2013 and [Child B] born in [month redacted] 2015. The parties resolved financial proceedings by consent by orders made [in] August 2018. The parties resolved parenting proceedings by consent by orders made [in] June 2020 (the consent orders).
3. In January 2023, the father commenced the current round of parenting proceedings. The care arrangements for the children pursuant to the consent orders were suspended until further order. Since that time, a number of interim orders have been made regulating the care arrangements for the children, until the primary orders were made.
4. The Court wrote to the parties on 24 January 2025, advising that a Readiness Hearing was listed on [a date in] August 2025 at 2.15pm.
5. On 30 January 2025, the Independent Children's Lawyer (ICL) wrote to the Court attaching the Minute of Consent Orders pronounced by the Court [in early] February 2025. In the covering letter to the Court, the ICL wrote:

The parties attended an ADR [Alternative Dispute Resolution] Conference at Legal Aid [in late] January 2025. The parties have reached an interim agreement that increases the Mother's spend time arrangements with the children. The parties have also agreed to adjourn the upcoming Readiness hearing scheduled [in] August 2025 to a date in December 2025 and also for the parties to attend a further ADR in July 2025.

1. On 3 February 2025, the primary Judge made the following orders in Chambers:

1. By consent, orders are hereby pronounced in terms of paragraph 1 to 6 of the Minute of Consent Orders dated [late] January 2025, a sealed copy of which is attached. 2. The Readiness Hearing listed [in] August 2025 be and is hereby vacated. 3. The proceedings be and are hereby removed from the Defended List with liberty to apply to be reinstated without loss of priority. 4. By no later than 4:00pm on 1 September 2025, the Independent Children's Lawyer is to provide an update to the Court as follows:

(a) whether the parties have attended a further ADR conference? > > (b) if so, whether further or other orders can be made by consent?

(c) if not, why not and has a conference been arranged?

1. The proceedings be adjourned with liberty to relist upon reasonable notice.
2. The proceedings otherwise be transferred to the Family Court of Western Australia.
3. The Minute of Consent Orders referred to in paragraph 1 of these orders provided that:

1. As at the date of these Orders, the Respondent Mother continues to live with the Maternal Grandfather at his [Suburb A] residence in WA.

Until further Order:

The parties agree to the following orders being made by consent:

1. All previous spend time arrangements between the children [Child A] born [day and month redacted] 2013 and [Child B] born [day and month redacted] 2015 ("the children") and the Mother be discharged.

1. The children spend time with the Respondent Mother as follows:

(a) Commencing 31 January 2025, during school weeks, each alternate weekend from after school Friday or 3pm Friday to 5pm Friday and 8am Saturday to 5pm Sunday;

(b) Commencing 28 March 2025, during school weeks, each alternate Weekend after school Friday or 3pm Friday to 5pm Sunday;

(c) During April 2025 school holidays, from 3pm 11 April 2025 Friday to 3pm 14 April 2025 Monday (extension of Mother's time); and

(d) Commencing 20 June 2025, during school weeks, each alternate weekend, after school Friday or 3pm Friday to commencement of school Monday or 9am Monday;

(e) At all such other dates and times as agreed between the parties.

Extra Curricular Activities

1. Both parties to communicate with each other and obtain the other party's written consent, prior to enrolling the children in any further extra-curricular activities when such activities coincide during the other party's time with the children.
2. Both parties to use their best endeavours to take the children to their enrolled sporting commitments and/or extra-curricular commitments when the children are in their respective care.

1. The parties to do all such acts and things necessary to communicate relevant information regarding the children via Facebook Messenger and both parties to use their best endeavours to respond within 24 hours of such communication, save and except for emergencies.

1. Subject to Legal Aid funding, the parties to do all such acts and things necessary to attend a further Dispute Resolution Conference in July 2025.
2. After several email exchanges between the parties, Legal Aid wrote to all parties on 6 August 2025 advising that the Dispute Resolution Conference has been listed [in] November 2025 at 9.30am. This email from Legal Aid to all parties was sent after a common available date was identified in the email exchange.
3. The Independent Children's Lawyer did not update the Court as ordered by 1 September 2025. The Court wrote to the parties on 2 September 2025, observing that with reference to the orders made on 3 February 2025 no update had been received in respect of the proceedings since that time. The letter then repeated the terms of the Chambers orders made on 2 September 2025.
4. The Chambers orders made on 2 September 2025 provided that:
   1. In the event a written request to relist the proceedings is not received by 4.00 pm on 15 September 2025, then the file be referred to the Presiding Magistrate in Chambers for consideration whether final orders be made in the following terms and without further notice to the parties as follows:

(a) all previous orders be and are hereby discharged;

(b) final orders in terms of paragraphs 1 to 5 of the Minute of Consent Orders attached to the orders of 3 February 2025;

(c) subject to the institution of an appeal by any party or the Independent Children's Lawyer, the Independent Children's Lawyer be discharged;

(d) all documents produced by named persons pursuant to subpoena, and any documents produced pursuant to section 162E of the Family Court Act 1997 (WA) be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof;

1. The proceedings otherwise be transferred to the Family Court of Western Australia.
2. The orders made on 2 September 2025 fall within the scope of Rule 171 item 3 of the Rules.[1] In the context of parenting proceedings, r 171 is amply supported by sections 202B, 202C and 202D in particular, and Division 11A of Part 5 more generally, of the Act.
3. On 8 September 2025, the mother's solicitors wrote to the Court in the following terms:

Dear Sir/ Madam,

Re: [BURTON & MAFI] - 3226/2018

We confirm that we represent Ms [Kailani Mafi] in the above matter.

We refer to the orders made by [the primary Judge] on 2 September 2025 and advise that the parties are currently in the process of arranging a further alternative dispute resolution (ADR) conference. It is anticipated that this conference will be scheduled for November or December, subject to the availability of the parties.

In light of the above, we respectfully request that the court defer the re‑issuance of final orders outlined in the correspondence dated 2 September 2025, and instead 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.

Please do not hesitate to contact the writer via email on [email address redacted] or on telephone on [number redacted] should you require any further information.

Yours Sincerely

[signature omitted]

[solicitor for the mother]

[Law Firm B]

1. This letter was not a request to relist the proceedings, nor was it countersigned by the other parties, nor did it attach a Minute of Consent Orders. The letter failed to comply with the Case Management Guidelines, which requires that any correspondence sent to the Court must show on its face that it has been copied to the other parties.
2. The letter failed to identify the email from Legal Aid to all parties dated 6 August 2025, identifying [date redacted] November 2025 as the date allocated for a Dispute Resolution Conference. The Court considers a reasonably available inference from this failure to identify, coupled with the absence of a consent order or counter-signed letter, is that a party withdrew from that agreement to attend a DR Conference [in] November 2025, by the time this letter was sent to the Court on 8 September 2025, more than a month after the Legal Aid email.
3. The Court wrote to the mother's solicitors on 15 September 2025 in the following terms:

I refer to the Correspondence received via the eCourts Portal on 8 September 2025.

Please be advised that the Correspondence has been referred to the Presiding Judicial Officer who made the following direction:

The letter should be rejected as it is not clear on the face of it that it has been copied to the other parties.

In any event, the request to extend the finalisation date to 30 January 2026 should be accompanied by the consent of the other party and the ICL.

Therefore the Correspondence has been rejected and removed from the file.

For any further procedural queries, please contact the Family Court of Western Australia on (08) 9224 8222.

1. On receipt of the Court's letter on 15 September 2025, the mother's solicitor had no excuse for not being taken to understand that:

(a) the letter dated 8 September 2025 had been rejected and removed from the Court file;

(b) the letter was not accepted either as a request to relist the proceedings or a consensual position adopted by the parties to defer the finalisation date of the proceedings;

(c) unless a request to relist the proceedings was made, or a consent minute was filed, the Court's discretion was enlivened to pronounce the finalisation orders identified in the orders made on 2 September 2025; and

(d) each day of further non-compliance with the terms of the orders made on 2 September 2025 rendered it more likely that the Court would pronounce the finalisation orders without further notice to the parties.

1. When the primary orders were made by the Court on 22 September 2025, this should not have been unexpected or unanticipated by the parties. At the time this order was made, it was reasonably open for the primary Judge to infer that no party sought to relist the proceedings and no party objected to the making of the primary orders.
2. The primary orders provide that:

Upon the court having not received a request to relist the proceeds pursuant to paragraph 1 of the orders of 2 September 2025, IT IS ORDERED IN CHAMBERS THAT:-

1. All previous orders be and are hereby discharged.
2. Final orders are hereby pronounced in terms of paragraphs 1 to 5 of the Minute of Consent Orders attached to the orders of 3 February 2025, a sealed copy of which is attached.
3. Subject to the institution of an appeal by any party or the Independent Children's Lawyer, the Independent Children's Lawyer be discharged.
4. All documents produced by named persons pursuant to subpoena, and any documents produced pursuant to section 202K or 162E of the Family Court Act 1997 (WA) be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
5. The proceedings be removed from the Defended List.
6. The proceedings otherwise be dismissed.

Steps taken by the mother after the primary orders were made

1. On 13 October 2025, the mother's solicitor wrote to the Court, seeking to file a Form 2 Application, seeking review of the decision of a Registrar, and seeking the following orders:
   1. Orders of 22 September 2025 be set aside.
   2. Parties to attend DR conference at Legal Aid on [date redacted] November 2025.
   3. A Directions Hearing be listed on a date to be advised not before 12 January 2026.
2. On 15 October 2025, the Court wrote to the mother's solicitors confirming that the letter and Form 2 Application, both dated 13 October 2025, had been considered by the Duty Judge in Chambers. Both documents were rejected for filing. The letter noted that:
   1. The Form 2 seeks to discharge final orders made by a Magistrate other than by the mechanism of an appeal and there was no power to make the orders sought.
   2. An application for review can only be made in relation to the decision of a Registrar.

1. On 23 October 2025, the mother's solicitors filed an Appeal Notice in the Court of Appeal. The Associate to the Court of Appeal Registrar wrote to the mother's solicitors on 27 October 2025 in the following terms:

Dear Practitioner

RE: CACV [File Number redacted] of [Year redacted] - [MAFI v BURTON]

I refer to the appeal notice filed [in] October 2025.

Jurisdiction is conferred upon the Court of Appeal by s 210A of the Family Court Act 1997 (WA) if, and only if, the following conditions are satisfied:

a) the appeal is brought from a 'decree'; and

b) the decree was made by the Magistrates Court; and

c) the decree was made in the exercise of non-federal jurisdiction; and

d) the Magistrates Court was constituted by a family law magistrate; and

e) the decree is not an interlocutory order.

If these conditions are not met, the appeal from a Magistrate is appropriately made to the Family Court of Western Australia, under s 211 of the Family Court Act 1997 (WA).

It seems that this Court does not have jurisdiction in relation to any appeal of the orders made by the Magistrate on 22 September 2025, as they appear to be interlocutory in nature: see CDW v LVE [2015] WASCA 247.

The appellant should consider filing a discontinuance notice (Form 16) at the earliest opportunity.

Yours faithfully

[signature omitted]

Associate to Court of Appeal Registrar

27 October 2025

1. On 3 November 2025, the Associate to the Court of Appeal Registrar wrote to the mother's solicitors requesting a status update.
2. On 6 November 2025, this Court rejected for filing the mother's Form 20 Notice of Appeal in respect of the primary orders, because (assuming without deciding that this Court had jurisdiction to entertain the appeal) such was sought to be filed more than 28 days after the making of the primary orders and an application to extend time to file the Notice of Appeal was required to be filed.[2]
3. On 6 November 2025, the mother's solicitors wrote to the Court of Appeal in the following terms:

Dear Principal Registrar,

Re: CACV [File Number redacted] of [Year redacted] - [MAFI v BURTON]

We confirm that we represent the appellant, Ms [Kailani Mafi], in the above matter.

We refer to the Court's correspondence dated 27 October 2025, in which the Associate to the Court of Appeal Registrar indicated that this Court lacks jurisdiction to determine the appeal.

Notwithstanding that indication, there remains a potential Jurisdictional issue with the Family Court, which has previously advised that the orders in question are final rather than interlocutory. If the Family Court maintains that position upon the filing of our notice of appeal, it may take a different view as to appellate jurisdiction.

To preserve our client's avenues of relief, our proposed course is as follows:

• We will first file a notice of appeal in the Family Court to confirm that it has jurisdiction to hear the appeal;
• Upon confirmation from the Family Court that it has jurisdiction, we will file a notice of discontinuance in this Court.

This approach is intended to avoid any prejudice to our client while the question of the appropriate appellate jurisdiction is resolved.

Please do not hesitate to contact the writer via email on [email address redacted] or on telephone on [number redacted] should you require any further information.

Yours Sincerely

[signature omitted]

[solicitor for the mother]

[Law Firm B]

Appellate jurisdiction of this Court in this case

1. The Family Court of Western Australia only has jurisdiction to entertain an appeal against a decree made by a family law Magistrate if, relevantly, the decree is an interlocutory order and this Court has granted leave to appeal.[3]
2. If the decree made by a family law Magistrate which is subject to appeal is not an interlocutory order, then the appeal lies to the Court of Appeal.[4]
3. In the mother's letter to the Court of Appeal dated 6 November 2025, she inferentially refers to the competing views expressed in:

(a) the letter from this Court to the mother's solicitors dated 15 October 2025, conveying the view of the Duty Judge in Chambers that the primary orders are "final orders made by a Magistrate"; and

(b) the letter from the Associate to the Court of Appeal Registrar to the mother's solicitor dated 27 October 2025, that the primary orders "appear to be interlocutory in nature" (with reference to CDW v LVE [2015] WASCA 247 ("CDW")).

1. As explained below, the apparently competing views are both correct.

1. Those statutory provisions in the Act which apply to the primary orders may be summarised as follows.
2. The definitions in s 5(1) includes the following:

final parenting order includes a parenting order that is an interlocutory order if the parenting order is not expressed to be an order until further order

1. The opening words to s 5(1) qualify the definitions which follow "unless the contrary intention appears". The Court is satisfied that, as a matter of statutory construction, a contrary intention may appear either expressly or implicitly in the legislation.
2. Section 66A is entitled "Child's best interests paramount consideration in making parenting order" and provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
3. Section 66C is entitled "How a court determines what is in a child's best interests" and provides that:

(1) Subject to subsection (4), in determining what is in the child's best interests, the court must -

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child - also consider the matters set out in subsection (4).

(2) For the purposes of subsection (1)(a), the court must consider the following matters -

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of -

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

(3) In considering the matters set out in subsection (2)(a), the court must include consideration of -

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

(4) For the purposes of subsection (1)(b), the court must consider the following matters -

(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary -

(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

(ii) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(iii) to develop a positive appreciation of that culture;

(b) the likely impact any proposed parenting order under this Part will have on that right.

(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (4).

38 Division 6 of Part 5 begins at s 86 and ends at s 112. The relevant provisions in Division 6 are identified below.

1. Section 86A, entitled "Child's best interests paramount consideration in making a parenting order", repeats the substance of s 66A, namely that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
2. Section 89 is entitled "Court's power to make a parenting order" and relevantly provides:

(1) In proceedings for a parenting order, a court may, subject to [...] this Division, make such parenting order as it thinks proper.

(2) Without limiting the generality of subsection (1) and subject to [...] this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

1. Section 89AAA is entitled "Reconsideration of final parenting orders" and provides:

(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless -

(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

(2) For the purposes of determining whether the court is satisfied as mentioned in subsection (1)(b), and without limiting section 66C, the court may have regard to any matters that the court considers relevant, including the following -

(a) the reasons for the final parenting order and the material on which it was based;

(b) whether there is any material available that was not available to the court that made the final parenting order;

(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);

(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

(3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.

(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.

42 Section 91 is entitled "General requirements for counselling before parenting order made" and provides:

[(1) deleted]

(2) Subject to subsection (3), a court must not make a parenting order in relation to a child unless -

(a) the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate; or

(b) the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence), that makes it appropriate to make the order even though the parties to the proceedings have not attended counselling as mentioned in paragraph (a); or

(c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend counselling as mentioned in paragraph (a).

(3) Subsection (2) does not apply to the making of a parenting order if -

(a) it is made with the consent of all the parties to the proceedings; or

1. The conditions in s 91(2) apply to the primary orders, because the primary orders do not fall within the exceptions identified in s 91(3)(a) and (b).
2. Division 11A of Part 5 is entitled "Principles for conducting child‑related proceedings". There are five principles which the Court is required to apply:[5]

The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

The third principle is that the proceedings are to be conducted in a way that will safeguard -

(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and

(b) the parties to the proceedings against family violence.

The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

1. The Court is entitled to apply the principles for conducting child‑related proceedings in Chambers, on the Court's own initiative.[6] The Court may exercise a power under Division 11A on the Court's own initiative.[7]
2. The Court is required to discharge several non-exhaustive enumerated duties in giving effect to the principles for conducting child-related proceedings, however a failure to do so does not invalidate the order.[8]
3. The Court is empowered to make determinations, findings and orders at any stage of the proceedings.[9]
4. The Court may designate a Family Consultant as the Family Consultant in relation to the proceedings.[10]
5. Finally, Rules 5 - 8, 15, 171, 172, 173 and Rule 311 of the Family Court Rules 2021 (WA) ("the Rules") are relevant to the issues posed by this case.
6. Pursuant to Rule 5, the main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case. Rules 6 - 8 amplify the requirements of Rule 5.
7. Rule 15 enables a party to apply to the court to shorten or extend a time that is fixed under the rules or by a procedural order. A party may make an application under this rule even though the time fixed by the rule or order has passed.
8. Rule 171 sets out general powers of case management and provides, among other things, that the Court may make a self‑executing order.
9. Rule 172 provides that:

172. Failure to comply with legislative provision or order

(1) If a step is taken after the time specified for taking the step by these rules, the regulations or a procedural order, the step is of no effect.

(2) If a party does not comply with these rules, the regulations or a procedural order, the court may -

(a) dismiss all or part of the case; or

(b) set aside a step taken or an order made; or

(c) determine the case as if it were undefended; or

(d) make any of the orders specified in the Table to rule 171; or

(e) order costs; or

(f) prohibit the party from taking a further step in the case until the occurrence of a specified event; or

(g) make any other order the court considers necessary, having regard to the main purpose of these rules.

1. The primary orders were made pursuant to Rule 172(2)(g), on the basis that the procedural order not complied with was the self-executing order made in Chambers on 2 September 2025 (pursuant to Rule 171).
2. Rule 173 provides that:

173. Relief from orders

(1) A party may apply for relief from -

(a) the effect of rule 172(1); or

(b) an order under rule 172(2).

(2) In determining an application under subrule (1), the court may consider -

(a) whether there is a good reason for the non-compliance; and

(b) the extent to which the party has complied with orders, legislative provisions and the pre-action procedures; and

(c) whether the non-compliance was caused by the party or the party's lawyer; and

(d) the impact of the non-compliance on the management of the case; and

(e) the effect of non-compliance on each other party; and

(f) costs; and

(g) whether the applicant should be stayed from taking any further steps in the case until the costs are paid; and

(h) if the application is for relief from the effect of rule 172(1), whether all parties consent to the step being taken after the specified time.

1. Rule 311 provides that:

311. Varying or setting aside orders

(1) A court may at any time vary or set aside an order, if -

(a) it was made in the absence of a party; or

(b) it was obtained by fraud; or

(c) it is interlocutory; or

(d) it is an injunction or for the appointment of a receiver; or

(e) it does not reflect the intention of the court; or

(f) the party in whose favour it was made consents; or

(g) there is a clerical mistake in the order; or

(h) there is an error arising in the order from an accidental slip or omission.

(2) Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.

1. No application has been brought in these proceedings by the mother pursuant to Rule 173(1) or Rule 311(1)(a) of the Rules. The primary orders, while defined as final parenting orders pursuant to the current iteration of the Act, were amenable to indirect challenge pursuant to these particular Rules. However, the Form 2 Application rejected for filing on 15 October 2025 did not seek orders on this basis.

CDW v LVE [2015] WASCA 247

1. Next, the Court considers the decision of the Western Australian Court of Appeal in CDW v LVE [2015] WASCA 247.
2. In CDW, the relevant facts may be summarised as follows: The child was born in February 2005. After 12 sitting days between June 2011 and August 2012, reasons and orders were made in December 2012 (the trial orders). The father applied to vary the trial orders in December 2014, asserting two material changes in circumstances. The presiding family law Magistrate dismissed the father's application after ruling that the changes in circumstances relied upon by the father were not sufficient to justify re-determination of the parenting orders.
3. The form of the hearing required the presiding family law Magistrate to consider the affidavit evidence of the parties and the oral submissions made by Counsel on behalf of each party.
4. The oral submissions of the parties required the Court to consider and apply the decision of the Full Court of the Family Court of Australia in Rice v Asplund (1979) FLC 90-725. That case is authority for the proposition that the Court should not entertain an application to make further parenting orders, where the original parenting orders were made by consent or after a contested hearing, unless there exists a sufficiently material change in circumstances to justify the Court reconsidering the previous parenting orders. Reasons were delivered and orders were made three weeks after the hearing.
5. The Court of Appeal held that it lacked jurisdiction to entertain the appeal. Further, that in the event this conclusion was erroneous, the appeal should be dismissed because it lacked merit.
6. In determining that it lacked jurisdiction to entertain the appeal, the Court of Appeal held that the decree made by the family law Magistrate dismissing the father's application was "an interlocutory order" within the meaning of s 210A(2).
7. The Court of Appeal analysed a number of High Court decisions dealing with the distinction between final and interlocutory judgments. Those cases establish that the Court is required to have regard to the legal rather than the practical effect of the judgment. The Court must enquire whether the judgment or order appealed from finally determines the rights of the parties.
8. Thus, the High Court has confirmed that orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such application might have very little prospect of success.

1. The Court of Appeal's conclusion is worth quoting in full (footnotes excluded):

[54] The application of these well-established principles to the circumstances of this case is quite straightforward. The classification of the decision under appeal as either interlocutory or final turns upon the question of whether the order made by the magistrate finally determined the rights of the parties with respect to the parenting orders which will govern the upbringing of the child. The order will not have that character if it is theoretically possible for the unsuccessful party to make a further application for the same relief, even though such an application may have very little prospect of success.

[55] Section 89 of the Act provides that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. It follows that the order of the magistrate dismissing the father's application for a variation to the parenting orders did not prevent the father from making a further application for the same relief. An evaluation of the likely outcome of such an application is irrelevant to the characterisation of the decision under appeal as either interlocutory or final. The theoretical prospect of such an application necessarily results in the characterisation of the magistrate's decision as interlocutory because while the prospect of a further application remains theoretically open, the decision of the magistrate cannot be said to have finally determined the rights of the parties in relation to the parenting orders governing the upbringing of their child.

1. The distinction between interlocutory and final orders was also surveyed, with relevantly identical conclusions, by the Appeal Division of the Federal Circuit and Family Court of Australia (Division 1) in Saha & Lahiri (No 3) (2023) FLC 94-158 at [76] - [97].

Characterisation of the primary order: discussion and conclusion

1. The primary order is defined as a 'final parenting order' because it falls within the definition of that term in s 5(1) and is an order to which s 89AAA of the Act may apply. Both the definition of 'final parenting order' in s 5(1) and the terms of s 89AAA were not in force when CDW was determined.

1. The Western Australian legislature, since the decision in CDW, has evinced a clear intention to draw a distinction between a final parenting order and an interlocutory parenting order expressed to be until further order. However, the specific term 'final parenting order' is used only in the definition in s 5(1) and in s 89AAA.
2. The Court is satisfied, as a matter of statutory construction, that the definition of 'final parenting order' is only intended to be used in the context of applying s 89AAA. The purpose of this amendment appears to lie in defining the scope of the orders to which the Court could apply a statutory version (in s 89AAA) of the Rice v Asplund principle.
3. In the Court's view, the parliament did not intend that the concept of a 'final parenting order' (referred to in s 5(1) and s 89AAA) be imported into Part 7 of the Act dealing with appeals. Part 7 does not refer to a 'final parenting order' but rather refers to an 'interlocutory order'.
4. For the reasons given in CDW, as summarily outlined above, the common law in Australia would categorise an order falling within the statutory definition of 'final parenting order' (in s 5(1)) as an 'interlocutory order' for appellate purposes, that is pursuant to s 210A(2) and s 211(1) of the Act.
5. Therefore, the primary order is an 'interlocutory order' for the purpose of Part 7 of the Act. Section 89 of the Act permits each party to file a fresh Form 1 Application in respect of parenting orders if so advised. Such an application would attract the operation of s 89AAA of the Act.

1. The general principles governing an application for an extension of time in which to appeal were summarised as follows in Simonsen v Legge [2010] WASCA 238, [8].[11] The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include the following:

(a) on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted;

(b) the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties;

(c) nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion;

(d) there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:

(i) the length of the delay;

(ii) the reasons for the delay;

(iii) the prospects of the applicant succeeding in the appeal; and

(iv) the extent of any prejudice to the respondent;

(e) other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled;

(f) the length and reasons for the delay must be addressed by the applicant and the [required] cogency of the explanation increases as the period of the extension sought increases;

(g) in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors; and

(h) similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted.

(citations omitted)

1. In light of the evidence and procedural history earlier outlined, the Court is satisfied that all of these relevant matters, save for the prospects of the mother succeeding in the appeal, would justify the Court exercising its discretion to extend time for the mother to file her Notice of Appeal.

1. In Goldsmith & Stinson (No 2) (2023) FLC 94-134, the Appeal Division of the Federal Circuit and Family Court of Australia (Division 1) set out the well-known principles which apply to an application for leave to appeal as follows:

If leave to appeal is required, the test adopted in this Court is a conjunctive one, namely, whether the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court and, if so, whether a substantial injustice would occur if leave were not granted: Medlow & Medlow (2016) FLC 93-692 at [57]; Moy & Pao [2022] FedCFamC1A 17; (2022) FLC 94-073 at [11] . The merits of the proposed appeal are relevant to the success of an application for leave to appeal: Ebner & Pappas [2014] FamCAFC 229; (2014) FLC 93-619 at [39]; Harford & Spalding [2022] FedCFamC1A 78 at [16].

(Emphasis in original)

1. In enquiring whether a substantial injustice would occur if leave to appeal were not granted, the Court supposes that the decision under appeal is wrong.[12]
2. So, the two questions posed for consideration in an application for leave to appeal are: (1) is the decision of the primary Judge attended by sufficient doubt to warrant reconsideration? (2) would a substantial injustice occur if leave to appeal were not granted, supposing that the decision under appeal is wrong? Both questions must be answered affirmatively for leave to be granted.

1. The common element in the mother's application for an extension of time to file a Notice of Appeal and, if granted, her application for leave to appeal, is an assessment by the Court of the prospects of success, or merits, of the appeal.
2. The primary order arose from an exercise of discretion by the primary Judge. The mother must point to an error long recognised in House v The King (1936) 55 CLR 499 at 504-505 (bold emphasis added):

... It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. The solicitor appearing for the mother, who does not appear to have had the conduct of the proceedings before the primary Judge, contended that the mother's sole ground of appeal, if an extension of time and leave to appeal were granted, would be that primary Judge's discretion miscarried in making the primary orders.
2. In developing this submission, the mother's solicitor submitted that the letter from the mother's solicitors dated 8 September 2025 should have been treated as a request to relist the proceedings. The Court notes that the letter requested an extension of time to comply with the date fixed by the orders made on 2 September 2025 (from 15 September 2025 until 'in or around early January 2026').
3. The mother's submission must be rejected because it was open to the primary Judge to deal with the letter in the manner recorded in the Court's letter dated 15 September 2025.
4. The mother's solicitor next submitted that the primary Judge knew or ought to have known that the mother did not consent to the primary orders being made, based upon the letter from her solicitors to the Court dated 8 September 2025, such letter being removed from the Court file on 15 September 2025, in the circumstances earlier outlined. In those circumstances the mother's solicitor submitted that it was not reasonably open for the primary Judge to make the primary orders where the parties' consent could not be reasonably inferred.
5. This submission must also be rejected, because when this letter was removed from the Court file on 15 September 2025, the Court was not required to take its content into account on the date the primary orders were made.
6. As earlier stated, on receipt of the Court's letter on 15 September 2025, the mother's solicitor had no excuse for not being taken to understand that:

(a) the letter dated 8 September 2025 had been rejected and removed from the Court file;

(b) the letter was not accepted either as a request to relist the proceedings or a consensual position adopted by the parties to defer the finalisation date of the proceedings;

(c) unless a request to relist the proceedings was made, or a consent minute was filed to defer the finalisation date, the Court's discretion was enlivened to pronounce the primary orders foreshadowed in the orders made on 2 September 2025; and

(d) each day of further non-compliance with the terms of the orders made on 2 September 2025 rendered it more likely that the Court would pronounce the finalisation orders without further notice to the parties.

1. The mother could simply have requested a relisting of the proceedings. That was what the orders made on 2 September 2025 provided for, that is what the mother did not do by her letter dated 8 September 2025, and that is what the Court's letter dated 15 September 2025 effectively compelled the mother to do, in order to avoid the increasingly likely consequences of the orders made on 2 September 2025.
2. When the primary orders were made by the Court on 22 September 2025, this should have been an outcome expected by the parties.
3. At the time the primary orders were made, it was open for the primary Judge to conclude that no party sought to relist the proceedings and no party objected to the making of the primary orders.
4. The Court does not accept that the primary Judge's discretion miscarried in making the primary orders because, for the reasons given, the making of the primary orders was open to the primary Judge on the material before the Court at the date the orders were made. The appellate standard of review is unlikely to be satisfied in this case.

1. The Court finds that the mother's appeal, if permitted to be pursued, is unlikely to succeed on the proposed ground of appeal advanced by the mother's solicitor. In those circumstances there is no utility in granting the mother an extension of time to file a Notice of Appeal. The Court refuses leave to appeal.
2. The decision of the primary Judge is not attended by sufficient doubt to warrant reconsideration.
3. 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.

1. For these reasons there will be the following orders:
   1. The Form 2 Application filed [in early] November 2025 and the Form 2A Response filed [in late] November 2025 be dismissed.

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

[1] Family Court Rules 2021 ("the Rules") r 171 item 3.

[3] Family Court Act 1997 (WA) ("the Act") s 211(1)(a).

[4] Ibid s 210A(2).

[5] Ibid s 202B.

[6] Ibid s 202C.

[7] Ibid s 202D.

[8] Ibid s 202E.

[9] Ibid s 202F.

[10] Ibid s 202G.

[11] Quoted in AK v V (No 2) [2021] WASCA 74, [28].

[12] Medlow & Medlow (2016) FLC 93-692 [57].