Isakson & Isakson [2025] FedCFamC1A 65 (14 April 2025)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Isakson & Isakson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the dismissal of an application to bring an appeal out of time from an order of the Magistrates Court of Western Australia.

1. The parties finally separated in September 2016 when their child was barely 14 months old.
2. Proceedings in respect of the child under Pt VII of the Family Law Act 1975 (Cth) ("the Act") were commenced in May 2018 and were concluded at trial in December 2020. On the last day of the trial, the parties resolved their differences of opinion and agreed upon final consent orders which provided, in summary, for them to equally share parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial time with the father, comprising five nights each fortnight in school terms and equal portions of school holidays.
3. Just on three years later, in January 2024, the father filed an Initiating Application to re-open the proceedings. In broad terms, he sought to vary the former orders in these three ways:

(a) by expanding the time which the child spends with him during school terms, initially to six nights per fortnight, but then to an equal time regime once the child starts secondary school several years hence (at [11(a)], [32] and [33]);

(b) by immediately changing the child's primary school enrolment from the school upon which the parties formerly agreed (at [6(d)], [8] and [11(b)]); and

(c) by certain minor adjustments (at [11(c)], [11(d)] and [12]).

1. The mother opposed the father's application to re-open the parenting proceedings, contending there was no change in circumstances to warrant it (at [13] and [31]).
2. The magistrate therefore entertained the dispute as a threshold hearing under s 65DAAA of the Act in June 2024 (at [16]-[18]) and, since the evidence was untested by cross-examination and the father was the applicant, his evidence was taken at its highest (at [28]).
3. Judgment was reserved and delivered with ex tempore reasons in February 2025. The magistrate dismissed the father's Initiating Application.
4. In relation to the first issue concerning the time spent by the child with the father, the father contended the changed circumstances were his occupation of a separate household from the paternal grandparents (at [34]), the child's expression of the desire to spend more time with him (at [36]), and some improvement in the state of his mental health (at [55]).
5. The magistrate did not find any of those changes to be sufficient to justify fresh litigation (at [35], [39], [69], [70] and [73]). In so far as the child's expressed view is concerned, the magistrate made the unexceptional observation that the child was now a few years older and had commensurately developed maturity, but those changes must have been anticipated when the parties reached agreement over the existing orders which would operate into the future (at [37] and [39]). The parties must also have anticipated the child would form views as he aged. The father conflated a foreseen change for an unforeseen change.
6. In relation to the second issue concerning the child's school enrolment, the school which the child currently attends was chosen by the father (at [8]). When the final consent orders were made in December 2020, the mother acceded to the father's desire to maintain the child's enrolment at that school (at [6(d)]). When the father began the fresh proceedings in January 2024, he wanted to change the child's enrolment to the school originally chosen by the mother (at [11(b)]). The change in circumstances upon which he relied was his inability to continue receiving reduced tuition fees, as he had before, and an asserted deterioration in some social and academic aspects of the school (at [45] and [52]-[53]).
7. The magistrate accepted the reduced tuition fees were no longer available, but there was no evidence the child's enrolment at the other school chosen by the father would be any cheaper, so there was no demonstrated financial advantage in any change (at [46]-[49]). As to the asserted shortcomings of the current school, the father admitted the child was performing well at the school and that, being a diligent student, he would likely perform well at any school, which fact the magistrate found militated against more litigation on the issue (at [51]). The father's nebulous concerns about the child being bullied and the falling academic standards at the school were regarded as being insignificant (at [50] and [52]-[54]).
8. In relation to the third issue concerning minor adjustments to the existing orders, the magistrate noted the intricate detail of the existing consent orders, which "occupy some 13 pages" and provide "fairly comprehensively" for all aspects of the child's care (at [5]). The father wanted to finesse the orders by adding some extra detail about the time the child spends with him in school holidays and on other special occasions, the child having telephone communication with the paternal grandparents, and the child's completion of homework and participation in other extra-curricular activities (at [77] and [80]).
9. The magistrate concluded the father's subjective perceptions about the "extensive losses of time" he experiences with the child in school holidays and on special occasions under the current orders was, objectively, an "exaggeration" and the issue was too insignificant to warrant fresh litigation (at [78]-[79]). The same conclusion was reached in respect of the ancillary issues (at [80]-[81]).
10. The time for filing any appeal from the magistrate's dismissal order expired on 26 March 2025. None was filed. Five days later, on 31 March 2025, the father filed an Application in an Appeal seeking leave to bring an appeal out of time. The application was supported by an affidavit filed on the same date by the father's solicitor, to which the draft Notice of Appeal is annexed. The extension application was opposed by the mother by a Response to an Application in an Appeal she filed on 8 April 2025.

1. The legal principles governing the determination of an application to extend time within which to appeal were stated as follows in Whitmore & Whitmore [2022] FedCFamC1A 75:
   1. Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
   2. Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.

1. The proposed appeal lies from an order dismissing a parenting application for the father's failure to surmount the impediment imposed by s 65DAAA of the Act. Correctly, the father acknowledges the dismissal order is interlocutory in nature and he requires leave to appeal (Radecki & Radecki [2024] FedCFamC1A 246 at [19]-[26] and [98]-[104]).
2. To establish an entitlement to leave to appeal, the father must establish the challenged decision is attended by sufficient doubt to warrant appellate scrutiny and, in addition, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]-[57]).
3. The father's fulfillment of the test requires advertence to the grounds of appeal pleaded in his draft Notice of Appeal.

1. This ground alleges legal error by the magistrate taking extraneous material into account. The magistrate recorded the evidence upon which the parties relied (at [14]) but also took into account some unidentified "documents filed in the previous proceedings", which included the report of the former single expert psychologist ("the single expert report") and the mother's Case Outline document (at [15]).
2. Despite the breadth of the plural reference to "documents" by the magistrate, it is clear enough from the reasons that only the single expert report featured in the magistrate's deliberations (at [30] and [56]). The written submissions made in the Case Outline document filed by the mother in the former proceedings were inconsequential because submissions are not evidence.
3. The ground asserts it was an error of law in and of itself to take the single expert report into account as part of the evidence adduced in the current proceedings, but that submission cannot be accepted when s 65DAAA(2)(a) of the Act expressly permitted the magistrate to have regard to "the material on which [the existing final parenting order] was based".
4. The former consent orders made in December 2020 must have been based, at least in part, upon the expert opinion evidence within the single expert report because the orders were entirely consistent with such evidence (at [30]), which proposition the father properly conceded in this hearing. It was therefore permissible for the magistrate to consider the single expert report, provided the parties knew it would be considered. The father would be deprived of procedural fairness and, hence, the magistrate would have fallen into an error of law by taking the single expert report into account in reliance upon s 65DAAA(2)(a) of the Act without first informing the parties of the intention to do so and giving them the chance to be heard about the influence it might have in the proceedings (Pickford & Pickford [2024] FedCFamC1A 249 at [75]).
5. However, the father did not actually suffer any procedural unfairness in this instance because he expected the magistrate to be cognisant of the single expert opinion evidence. Such expectation is evident from two things: first, he was permitted to adduce fresh adversarial expert evidence to try and overcome the former evidence of the single expert (at [14] and [62]-[65]); and secondly, in the submissions made by his counsel to the magistrate, he expressly addressed the single expert evidence, such that the magistrate was persuaded to accept the proposition of how the father's former "psychological functioning and personality style" had influenced the single expert's evidence and the mother's beliefs about the "appropriate care arrangements for the child on a long-term basis" at that time (at [60]).
6. The magistrate's consideration of the single expert evidence, which was to some extent critical of the father's parenting capacity (at [56]-[58]), allowed the father to contrast it with the new adversarial expert evidence he adduced and thereby gave him greater scope to argue for a change in circumstances warranting reconsideration of the orders (at [66] and [68]). In that way, the admission of the single expert evidence tended to help rather than hinder the father's cause, though it did not sustain his case.
7. With refreshing candour, the father's counsel made concessions to that effect and agreed Ground 3 would need to be abandoned because it collided irreconcilably with the submissions made in support of Ground 1 about the improvement in the father's mental health being a feature of the evidence which should have proven a significant change in circumstances, to which ground it is now necessary to turn.

1. This ground alleges the magistrate "erred in law" by misapplying s 65DAAA of the Act.
2. The particulars of the ground are articulated in Grounds 1(b) and 1(c).
3. The error is alleged to be twofold: first, by considering the matters specified in s 65DAAA(2) when reaching a determination about the fulfilment of s 65DAAA(1)(a) of the Act; and secondly, by failing to delineate between the factual findings required by s 65DAAA(1)(a) and the discretionary determination required by s 65DAAA(1)(b) of the Act.
4. It is helpful to refer to the relevant provisions of the Act, which state as follows:

65DAAA Reconsideration of final parenting orders

(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 paragraph (1)(b), and without limiting section 60CC, 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.

...

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

1. First it is necessary to say something about s 65DAAA(4) of the Act. That provision does not protect the decision made under s 65DAAA(1) by a judge or magistrate from an appeal by declaring it to be valid despite error. The only purpose of a saving provision like s 65DAAA(4) is to guard against any suggestion that non-compliance with the requirements of s 65DAAA(1) by an inferior court, such as Magistrates Court of Western Australia, amounts to jurisdictional error which retrospectively invalidates the decision (Queensland & Ors v Mr Stradford [2025] HCA 3; (2025) 99 ALJR 396 at [51]-[53]; Stanley v DPP (NSW) [2023] HCA 3; (2023) 278 CLR 1 at [16], [45], [95] and [158]).
2. The saving provision has no work to do in respect of decisions made by superior courts, such as the Federal Circuit and Family Court of Australia (Division 1), whose decisions are valid until set aside on appeal or quashed by prerogative writ (State of NSW v Kable (2013) 252 CLR 118 at [19], [32], [33], [38], [41], [56] and [57]). Nor does the saving provision now have any work to do in respect of decisions made by the Federal Circuit and Family Court of Australia (Division 2), even though it is an inferior court, given how s 138 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) now protects its decisions from collateral attack and preserves the validity of its decisions until set aside on appeal.
3. Section 65DAAA(1) poses a composite test which must be fulfilled before final parenting orders are varied. The first point made by Ground 1(b) is that the magistrate incorrectly stated s 65DAAA(2)(a) of the Act permitted consideration of material upon which the existing orders were based in determining the question of "significant change in circumstances" (at [18]), which is the first part of the composite test under s 65DAAA(1)(a) of the Act, when the terms of s 65DAAA(2)(a) only permit such material to be considered when determining the second part of the composite test under s 65DAAA(1)(b) of the Act.
4. The contention is flawed because the threshold assessment required by s 65DAAA(1) of the Act is determined on the whole of the evidence adduced at the outset. Evidence is not tendered in respect of only the initial s 65DAAA(1)(a) question and then, subject to it being affirmatively established, more evidence is then separately tendered to address the subsequent question under s 65DAAA(1)(b). The whole of the evidence is available to satisfy the whole of the test. Section 65DAAA(2) is an enabling, not a prohibitive, provision and it does not preclude admissible evidence directed to the second part of the test from being used to help determine the first part of the test.
5. Section 65DAAA(1)(a) required the magistrate to consider and find whether there had been any significant change in circumstances since the consent orders were made in December 2020 (Radecki & Radecki at [76]-[79] and [128]). The magistrate did so. The magistrate accepted the father's evidence of changed circumstances at its highest for the purpose of the threshold exercise. The magistrate accepted and therefore found: the father no longer lived with his parents (at [34]-[35]); the child expressed the wish to spend more time with him (at [36] and [39]); the father's psychological "functioning" had improved (at [67]-[68]); reduced tuition fees at the child's current school were no longer available (at [46]); the father harboured concerns about the child's current school (at [52]-[53]); and the father asserted shortcomings in the existing orders (at [78]-[80]).
6. It is just that the magistrate was not satisfied such changes were "significant", which criterium under s 65DAAA(1)(a) of the Act is the trigger for consideration of s 65DAAA(1)(b). If it were otherwise, the section would be entirely pointless, as every fresh parenting application could then barge through the single gateway of s 65DAAA(1)(b), regardless of any change in circumstances since orders were last made, so long as the applicant could persuade of an arguable case that the child's best interests under s 60CC of the Act could be genuinely engaged as an issue if permitted to prosecute the subject application at a substantive adversarial hearing.
7. Section 65DAAA(1)(a) of the Act is a necessary, but not dispositive, component of the test. Section 65DAAA(1)(b), given the way in which it is elaborated by s 65DAAA(2), enables a fresh parenting application to be dismissed if doing so would serve the best interests of the child, even if the applicant does first satisfy s 65DAAA(1)(a) by proving a significant change in circumstances since the last orders were made.
8. Final parenting orders are only "final" in the sense that they finalise a cause of action. They are never final in the sense of being immutable because the doctrines of res judicata and estoppel do not apply (Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383 at [100]; Schorel & Schorel [1990] FamCA 58; (1990) FLC 92-144 at 78,000-78,005). Section 65D(2) of the Act envisages that final orders may need to be varied, but s 65DAAA stipulates that any variation should only occur in the limited circumstances prescribed. The section is intended to be a taut turnstile, admitting only truly deserving cases and blocking the speculative applications of litigants who are merely disappointed with the last result. Endless litigation must be deterred. The law values finality (Commonwealth of Australia v Sanofi [2024] HCA 47; (2024) 421 ALR 1 at [31]; CDJ v VAJ (1998) 197 CLR 172 at 204 and 231-232).
9. Here, it was found there was no "significant" change in circumstances since the final orders were last made in December 2020, so the first limb of the conjunctive test was not satisfied and there was hence no justification to re-consider the orders. The magistrate concluded the reasons for judgment thus:
   1. I have concluded that each circumstance upon which [the father] relies is not on its own sufficient to warrant the continuation of fresh litigation into what arrangements are in the best interests of [the child]. The consideration of those circumstances collectively leads me to the same conclusion. On balance, I am not satisfied any potential benefits of reconsidering what arrangements might be in [the child's] best interests outweigh the potential detriment to him of the proceedings continuing.
   2. I therefore conclude that in all the circumstances, the outcome is that it is in the best interests of [the child] that [the father's] application be dismissed.

1. The magistrate therefore considered the changes asserted by the father, both individually and in aggregation.
2. The magistrate had no need to mention the child's best interests. It would only have been necessary to do so when addressing s 65DAAA(1)(b), provided s 65DAAA(1)(a) of the Act was first satisfied, but no legal error is thereby evident. The father fell at the first hurdle, so it did not matter whether he also fell at the second, which means Ground 1(c) also lacks merit.

1. This ground is only posited in the alternative to Ground 1. It contends the magistrate failed to give sufficient reasons for the separate determinations under the two limbs of s 65DAAA(1) of the Act, but it also lacks merit.
2. The magistrate carefully isolated the changed circumstances for which the father advocated, accepted his untested evidence as to the asserted changes at its highest, but found the changes were not "significant", either individually or collectively, and gave logical reasons for those conclusions. As s 65DAAA(1)(a) was not fulfilled, s 65DAAA(1)(b) was not then engaged. The magistrate's final comments about the child's best interests were superfluous.

1. The proposed application for leave to appeal does not manifest any reasonable prospect of success. Allowing the father an extension of time within which to prosecute the application for leave to appeal would pointlessly cause undue prejudice to the mother, as she would unnecessarily incur more expense and delay in resisting the application. Such considerations outweigh the father's modest delay of five days in bringing the extension application.
2. The mother sought her party/party costs of resisting the extension application, which she assessed in the sum of $1,000, on account of the father's application being a request for an indulgence which was wholly unsuccessful. The father did not resist the costs order, but asserted costs should be assessed at only $500. Since the father conversely claimed costs of $1,500 from the mother if his application had succeeded, his challenge to her lesser costs of $1,000 lacked persuasion. The mother's counsel set aside one-half a day to contest the application, so she shall have her costs in the modest sum assessed.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.