(This judgment was delivered extemporaneously on 16 May 2025 and has been edited from the transcript.)
[2]
I am dealing today with an urgent application for judicial review from the applicant, Ms GXB. Two applications were filed; one dated 5 May 2025, and one dated 7 May 2025. Ms GXB appeared before me and explained the circumstances that led to the two applications. She clarified that the relief she seeks is for judicial review under Order 56 of the Rules of the Supreme Court 1971 (WA), in the application dated 7 May 2025.
[3]
The relief sought relates to orders and reasons for judgment given by the Family Court of Western Australia and in particular, reasons and orders made in the decision of and in the decision of [2024] FCWA 252.
The genesis of those matters was explained by Ms GXB and as is apparent from the extensive papers that Ms GXB has provided to the court. Ms GXB's application for judicial review relates to two decisions of the Family Court of Western Australia. The first decision was made in relation to matters heard on 16 September 2024 that were the subject of reasons for decision of 5 November 2024 and orders pursuant to those reasons also given on 5 November 2024. The second decision was made in relation to matters heard on 17 April 2025 that were the subject of reasons for decision of 17 April 2025 and orders pursuant to those reasons also given on 17 April 2025 and emailed to Ms GXB on the 22 April 2025.
Reading both the reasons for decisions of 5 November 2024, and 17 April 2025, it is immediately apparent that the proceedings in the Family Court have a tortuous, lengthy, and very difficult history. I can appreciate that they would be extremely distressing for Ms GXB. The hearing of 16 September 2024, and the reasons and orders of 5 November 2024 concerned a range of matters and outstanding applications that were before the judge of the Family Court who was dealing with the matter.
Her Honour dealt with various issues on 16 September 2024 and then at the end of her Honour's reasons she set out an extensive raft of proposed orders to deal with the further conduct of the matter. Those orders were then encapsulated in formal orders dated 5 November 2024. Having set out the orders for the management and conduct of the various applications her Honour ordered, at order 23, that the proceedings be adjourned to an interim hearing on 17 April 2025 for a range of matters to be determined at that hearing.
The hearing was thus listed for 17 April 2025. Either the day before or at least very shortly before the hearing of 17 April 2025, Ms GXB filed an extensive affidavit which sought various forms of relief arising from her difficult circumstances. Ms GXB explains that she was unable to attend to the various directions and orders that had been made in preparation for the conduct of the hearings of 17 April 2025 and indeed was unable to attend that hearing on 17 April 2025.
The respondent to that hearing, that is, the husband in the matrimonial proceedings, sought leave to proceed with the hearing on 17 April 2025 in the absence of Ms GXB, that is, on an undefended basis. Having considered the history of the matter, her Honour came to the view that she would grant leave to the husband to proceed with the hearing on 17 April 2025 on an undefended basis and that she would publish reasons for reaching that conclusion.
Her Honour ultimately published those reasons, and they are the reasons contained in [2025] FCWA 96 and the subject of Ms GXB's application for judicial review. The formal orders that her Honour made on the 17 April 2025 were:
Order 1: that the husband have leave to proceed on an undefended basis in terms of the interim orders sought in a minute filed on 25 March 2025;
Order 2: that the proceedings be adjourned for judgment to be delivered on a date to be advised.
Having heard from Ms GXB to clarify my understanding of what had occurred, I have proceeded on the basis that a hearing took place on 17 April 2025 in the absence of Ms GXB, and the judgment in respect of that hearing has not yet been delivered, but is to be delivered on a date to be advised, in accordance with order 2 of the orders made on that day. Ms GXB confirmed that she has yet to be notified of a date in respect of which judgment will be delivered.
That is, broadly, the background to Ms B's application for judicial review in which, as I have said, she seeks judicial review of the decision and the orders of 17 April 2025.
[4]
Ms GXB has set out comprehensively the grounds of her application and has explained that it is urgent. Having read the content of the application and heard from Ms GXB, it is apparent that Ms GXB is aggrieved by the reasons and the orders of 17 April 2025 because she considers that she was denied natural justice and procedural fairness. This is because the hearing proceeded in her absence and failed to take account of her circumstances which had led to her absence and her being unable to meet the orders and directions for the management of the hearing or leading up to the hearing.
Ms GXB says, on that basis, the judgment or the orders ought to be set aside because they were made unlawfully by reason of having been made in breach of the rules of natural justice and procedural fairness.
In the very short amount of time that I have had available to me to consider the application, I have read the papers filed by Ms GXB but I have not been in a position, nor was it necessarily appropriate for me, to formulate a view as to the merits of Ms GXB's contention that the reasons and orders were made without affording her procedural fairness.
I can understand that Ms GXB is deeply aggrieved and distressed by what has happened, but I am not in a position to reach any concluded or even provisional view about the merits of those contentions. More fundamentally, Ms GXB's application raises the question of whether the Family Court of Western Australia's decisions are amenable to judicial review by the Supreme Court.
[5]
Whilst I have sympathy for the distress that Ms GXB obviously is experiencing, I have considerable doubt as to whether decisions of the Family Court of Western Australia are amenable to judicial review by this court. It seems to me that the necessary course for someone aggrieved by decisions of the Family Court of Western Australia is the appellate procedure provided in respect of decisions of that court.
I have not been able, in the short time available to me, to identify any substantial authority in relation to the question. However, I note that in Commonwealth Bank of Australia v Makascheff [2017] NSWSC 22, a decision of the New South Wales Supreme Court, judicial review was sought of a decision of that court and that application came before Campbell J. Campbell J said at [8]:
[6]
It seems to me that the Court of Appeal must be the appropriate forum to consider whether there is any jurisdiction to review in the exercise of a supervisory jurisdiction, decisions of judges of the Supreme Court at first instance.
[7]
It is a settled principle of law, as I understand it, that the decisions of the judges of superior courts of record, like the Supreme Court of New South Wales, are not amenable to judicial review, as opposed to being subject to appeal to the Court of Appeal.
[8]
It seems to me that the same principle may well apply to the Family Court of Western Australia. However, even if it were the case that the court had jurisdiction to undertake judicial review of the decisions of the Family Court of Western Australia, applications for judicial review are discretionary in nature. Therefore, even if I were persuaded, which at present I am not, that the court was able to undertake a judicial review of a decision of the Family Court of Western Australia, I would need to be persuaded that it was appropriate in the circumstances to exercise the court's discretion.
Regrettably for Ms GXB, I am not able to be persuaded that the discretion ought to be exercised in that way. It seems to me that the proper course or complaint about the decision that has been made is to appeal the orders of 17 April 2025, or perhaps to appeal the decision when it is ultimately handed down and seek a stay in the context of the appellate jurisdiction or appellate processes of the Family Court of Western Australia.
Further, it seems to me that if this court were to exercise a discretion to undertake judicial review of decisions of the Family Court, it would be an inappropriate interference with the processes of the Family Court. It would be a matter that could possibly disturb the careful balance of the manner in which various disputes are adjudicated by the Family Court, as distinct from this court, and open, really, what might be a floodgate of applications, which seems to me both undesirable and inappropriate in terms of the proper administration of justice in this jurisdiction.
[9]
In all the circumstances, therefore, I am not persuaded that this court has jurisdiction to undertake judicial review of the decision of the Family Court of Western Australia, and I am not persuaded in any event that it would be a proper exercise of the court's discretion, even if it had such jurisdiction.
Accordingly, in my view, I have no alternative but to refuse the application, and they are the orders that I will make.
[10]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[11]
[1] The Family Court of Western Australia only publishes select judgements. Both [2025] FCWA 96 and [2024] FCWA 252 are not published judgments and accordingly have been anonymised.