RE AWN; EX PARTE AWN [2026] WASC 59 (6 March 2026)

1. In the Application under a section headed 'F. Contextual History Supporting Credibility', AWN also said that 'the present FVRO concerns relate to [HTP] and [HTP's] ex-wife'.
2. The Application came before the learned Magistrate on 5 December 2025 for directions.[8] AWN and PJN were both present, as was the Independent Children's Lawyer for NN, but PJN's solicitor did not attend and could not be contacted, despite an attempt to do so.[9]
3. The learned Magistrate made the following orders on 5 December 2025:
   1. The Memorandum received from the Department of Communities, of 3 December 2025, will be accepted into evidence and placed on the Court file.
   2. The [Application] is set down for interim hearing on 11 March 2026 at 11:00am, before Magistrate Mackey, with an estimated hearing time of 1 hour.
   3. [PJN] is to file and serve a Form 2A Response to an Application in a Case and Case Information Affidavit by no later than close of Registry on 3 March 2026.
   4. The correspondence from the Independent Children's Lawyer of 5 December 2025 is accepted into evidence and marked as Exhibit C1.
4. The proceedings otherwise be transferred to the Family Court of Western Australia.[10]
5. The effect of these orders was to list the Application for an interim hearing on 11 March 2026, require PJN to file a response to the Application and an affidavit by 3 March 2026, and to accept two documents into evidence. On their terms, the orders did not determine the Application. They programmed the Application for an interim hearing. The Application remains undetermined.
6. The Memorandum received from the Department of Communities of 3 December 2025 (referred to in order 1) (the Memorandum) begins by referring to a 'matter', namely '[AWN] & [PJN]' and relevantly states:[11]

The Department does not have an open file in relation to this matter.

The Department have had contact in relation to Child Protection concerns for the children, [IN] and [NN].

On 12 July 2023 the Department provided a Memorandum to the Court in relation to the history of contact with the family. The Department have since had the following contact:

The Department have had contact with [PJN] dated 2024 regarding custody related matters and Child Protection concerns for her partner's children, noting no adverse information was recorded for [PJN].

On 21 October 2025 the Department received a contact from [AWN] who alleged that [HTP] historically assaulted [IN] and [NN], and he sought information regarding an alleged Family Violence Restraining Order ('FVRO') against [HTP], which protected [HTP's] child. The Department advised AWN to request a welfare check through Western Australia Police ('WAPOL') if he held immediate concerns for [IN] and [NN], and to seek information from the Department of Justice in relation to the FVRO. On 26 October 2025 the Department received an additional contact from [PJN] who alleged that [AWN] frequently left [NN] at home unsupervised and that he installed a security camera in [NN's] bedroom to monitor her. The Department spoke with [AWN] who confirmed he had installed a security camera in the home, he advised he only used it when he left the home for short periods to purchase medication or shopping for [IN] or [NN] when they were unwell,[12] and he alleged that [PJN] made allegations against him in retaliation to his queries regarding [HTP's] FVRO. The Department noted the concerns from both parties appeared conflictual, deemed the concerns did not meet the threshold for further involvement and closed the contact with no further action warranted.

The Department have had no further contact in relation to the matter.

The Department's Family Violence Incident Report triage system holds no additional records for either party.

1. The correspondence from the Independent Children's Lawyer of 5 December 2025 (the ICL Letter) relevantly states:[13]

On 17 November 2025, the Court provided permission to the parties and the [Independent Children's Lawyer] to inspect documents received from the Western Australia Police (being SIER 3 and SIER 4). The writer inspected those documents on 27 November 2025.

Following inspection of the abovementioned documents, the writer made an appointment to meet with the child, [NN], given some of the allegations made against [PJN's] partner, [HTP] and his son of a prior relationship, [KP] who is aged 16. This appointment was made prior to [AWN] filing [the Application].

The writer met with [NN] today. [NN] was neatly dressed in school uniform.

[NN] was brought to the writer's office by [PJN]. [NN] was seen separately, and without [PJN] present.

[NN] provided the following views/information:

1. She is really enjoying the week about arrangement, living between [PJN] and [AWN's] house. She does not want this to change, even for school holidays (unless they are travelling somewhere) and she said that it would make her feel sad if she lived with only one parent and only saw the other parent for a shorter amount of time. She did not think this would be fair.

2. Neither [HTP] nor [KP] have done anything whilst she has been around them that has made her feel uncomfortable. [NN] reported that she feels safe at [PJN's] house.

3. [NN] has her own room at [PJN's] house and the bathroom door has a lock on it. [NN] said that she locks the bathroom door when she uses the bathroom.

4. [NN] would feel comfortable telling both [PJN] and [AWN] if someone did something that made her feel unsafe or uncomfortable. She also mentioned that she could tell her school counsellor. [NN] said that she has not had any reason to speak to [PJN] or [AWN] about anything that has made her feel unsafe or uncomfortable.

5. [NN] is unhappy at her present school and would like to change to [a different school].

1. AWN has filed an affidavit annexing a copy of the transcript of the hearing before the learned Magistrate on 5 December 2025. It is clear from the transcript[14] that the learned Magistrate relied on the Memorandum and, more particularly, the ICL Letter in deciding to list an interim hearing of the Application on 11 March 2026 rather than at an earlier time. In an exchange with the Independent Children's Lawyer, the learned Magistrate said:

HIS HONOUR: What I'm proposing to do is, if [AWN] wishes to pursue his application, I will list it to when I'm currently listing interim hearings, which is March. The respondent can file responding documents in due course, but I'm not going to make an order that requires an immediate response, because, given the material that's before the court, principally your letter in terms of your recent meeting with [NN], I'm satisfied on the basis of that information that [NN] is not currently at risk based on what she has told you and her ability to be self-protective in terms of reporting concerns.

1. Later in the directions hearing, the learned Magistrate said in an exchange with PJN:

I appreciate your lawyer's not here, but what I'm proposing to do is just set the [Application] down for a hearing in March, make an order that you've got to file your Form 2A response and your affidavit in support, but I'm not going to require you to file it until late in February. And in the meantime, it might very well be that there's some discussion about whether the hearing needs to go ahead or not, but I'm certainly satisfied on the evidence that's before the court at this juncture, particularly the evidence about [NN's] recent meeting with the Independent Children's Lawyer, that this matter does not have any urgency. All right?

So, [AWN], what I'm going to do is program the matter to an interim hearing in March, okay?

[AWN]: Okay.

1. After the learned Magistrate made his orders and his Honour had raised with AWN the camera referred to in the Memorandum, to which I referred above, the learned Magistrate continued:

All right. Thank you. That completes today's proceedings. Yes. Thank you. Yes.

[AWN]: Yes, just - I'm so sorry. Just a couple of things. Just one thing, really, before we go, and I do appreciate that we're all pressed for time. The meeting - the interview with [NN], I was not made aware of. It just happened. This morning, [the Independent Children's Lawyer] just came and handed me the [ICL Letter]. Now, as you - as you - as you mentioned earlier, it is very good of - very - very amicable of [the Independent Children's Lawyer] to have arranged that meeting, okay? The problem is I just feel that, first, [NN] was transported to the interview by the mother immediately before the meeting.

Under the ICL's guideline, interviews should only occur in neutral conditions to avoid influence or perceived pressure. Second, the questions recorded in the letter are extremely limited. They do not address the key safety issues before the court. [NN] was not asked about the presence of adults in the household, exposure to behaviour or matters connected with the police material. So I just feel that this - although I commend [the Independent Children's Lawyer] for having a chat with [NN], number 1, I was not - I was not made aware of.

And prior - our prior - our prior hearing when you were presiding, you asked - I had put orders in there to - and I had said that, you know, I would like immediate orders to remove the children because of this alleged FVRO, and then I - I decided - because we just do not know what's in there, it might - it might amount to nothing. I said, 'Well, you know what? Just let's leave it'. So - but now I've inspected the documents and they are very suspicious. The conversation that I've had with [NN] as well have also raised suspicions. So, for example, when I say suspicions, is I've asked her, 'Is everything okay at home?' She says, 'Yes, everything's okay'.

HIS HONOUR: [AWN] ---

[AWN]: Yes.

HIS HONOUR: Is there anything else you want to say that is going to assist me today in terms of the orders that I've made?

[AWN]: Yes. Yes. I unfortunately feel that [the Independent Children's Lawyer] does not have the best interests for the kids.

HIS HONOUR: All right.

[AWN]: Yes.

HIS HONOUR: Well, [AWN], in the event that you seek an order in relation to the Independent Children's Lawyer, there are mechanisms by which you can bring that application before the court. Your comments have been noted. That completes today's proceedings. Thanks, everyone.[15]

AWN seeks a review order in respect of the hearing on 5 December 2025

1. By originating motion filed on 5 January 2026, AWN seeks a review order under s 36 of the Magistrates Court Act 2004 (WA) (Magistrates Court Act) in respect of the orders made by the learned Magistrate at the directions hearing on 5 December 2025.
2. In his originating motion, AWN sets out two similar but not identical sets of grounds.[16] I set them out below, with AWN's second expression of his grounds in parentheses:

(a) denial of procedural fairness at the hearing on 5 December 2025 (failure to accord AWN a reasonable opportunity to be heard on material child-safety evidence);

(b) late material was accepted and relied upon without reasonable notice to AWN and without affording a material opportunity to respond (reliance on late, untested material without procedural fairness);

(c) AWN's opportunity to be heard on matters of child safety and risk was improperly limited (failure to properly consider relevant risk evidence relating to child safety);

(d) relevant material was not properly engaged with prior to procedural directions being made (taking into account irrelevant considerations and/or failing to take into account relevant considerations); and

(e) the decision-making process was therefore legally unreasonable and affected by jurisdictional error (making procedural directions that exposed the child to an unacceptable risk contrary to established principles).

1. In oral submissions before me on 20 January and 2 February 2026, AWN clarified his grounds of review. With the benefit of those submissions, AWN's grounds of review can conveniently be described as follows.
2. First, the learned Magistrate failed to accord AWN procedural fairness before making orders on 5 December 2025. In this context AWN says that:

(a) the learned Magistrate failed to accord AWN a reasonable opportunity to be heard on material child-safety evidence, namely the FVRO-related material;[17] and

(b) the learned Magistrate relied on the ICL Letter when that document was provided late, so that AWN did not have an opportunity to respond, and its content was untested.[18]

1. Second, the learned Magistrate treated the ICL Letter as being determinative of the Application.[19]
2. Third, in doing so, the learned Magistrate failed to have regard to the mandatory relevant considerations provided by s 60CC(2)(a) and s 60CC(2A) of the Family Law Act[20] and failed to properly consider the FVRO‑related material.[21]
3. Fourth, the learned Magistrate failed to consider the Application in a manner consistent with the High Court's decision in M v M,[22] and thereby exposed NN to unnecessary risk.[23]

The relevant principles and procedure on an application for a review order

1. Under s 36(2) of the Magistrates Court Act, the procedure for making, and in relation to, an application for a review order is to be prescribed by rules of this court.
2. That procedure has been prescribed by Order 56A of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court). Under Order 56A rule 2, the application is made ex parte.
3. The procedure and principles applicable to determining whether to make a review order are well known and have recently been explained by Palmer J in Ex Parte J C.[24] It is unnecessary for me to reproduce those paragraphs of his Honour's judgment in full, and I gratefully adopt them.
4. It is sufficient for present purposes to refer to the following principles which I draw from Ex Parte J C:

(a) An application under s 36 of the Magistrates Court Act is concerned only with the legality of decisions, and not the merits.

(b) A review order can only be made if the applicant establishes a case that an error of the type identified in s 36(1)(a), (b) or (c) of the Magistrates Court Act was made that has a reasonable prospect of success.

(c) To fall within s 36(1), the error must be either a jurisdictional error, or an error of law on the face of the record.

(d) It is more difficult to demonstrate jurisdictional error on the part of an inferior court than in the case of an administrative decision-maker. Generally speaking, inferior courts have jurisdiction to decide questions of law, including the proper construction of a statute, and to do so incorrectly.

(e) One category of jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case.

(f) Another category of jurisdictional error is where procedural fairness has been denied.

(g) This court is empowered to make a review order if the material before the court demonstrates an arguable case in relation to a ground of jurisdictional error or an error of law on the face of the record, in the sense that the case has reasonable prospects of success.

1. AWN's application for a review order should be dismissed. My reasons for reaching that conclusion may be summarised as follows:

(a) this court does not have jurisdiction to entertain AWN's application; and

(b) even if this court does have jurisdiction to entertain AWN's application, the material before the court does not demonstrate an arguable case in relation to a ground of jurisdictional error or an error of law on the face of the record.

1. The court is always required to consider whether it has jurisdiction and to satisfy itself that it exists.[25]
2. In DPRS,[26] Smith AUJ held that this court does not have jurisdiction to review a decision of a magistrate made in the exercise of federal jurisdiction under the Family Law Act whether that decision be in respect of property interests orders[27] or interim or final parenting orders.[28]
3. A parenting order in relation to a child of a marriage is made in the exercise of federal jurisdiction under the Family Law Act.[29] At a directions hearing before me on 20 January 2026, AWN confirmed that he had been married to PJN for almost 15 years.[30] NN is not yet 15 years old.[31]
4. At the directions hearing on 20 January 2026, AWN was provided with a copy of DPRS and given time to file written submissions on whether this court has jurisdiction to entertain his application for a review order. He was also given the opportunity to supplement his written submissions with oral submissions, which AWN made at the next hearing before me on 2 February 2026.
5. AWN does not submit that DPRS was wrongly decided.[32] In any event, as a decision of the General Division of this court on a question of law, I should follow DPRS unless I consider the decision to be plainly wrong, which I do not.[33]
6. AWN instead submits that DPRS:

confirmed that where a decision is made in the exercise of federal jurisdiction under the Family Law Act 1975 (Cth), the Supreme Court cannot undertake merits review of that decision. However, Re DPRS equally confirms that the Supreme Court's supervisory jurisdiction is preserved where the impugned decision is affected by jurisdictional error or denial of procedural fairness.[34]

1. I do not accept that submission. In DPRS at [40] - [42], Smith AUJ briefly addresses general principles of judicial review. Her Honour's statement of those general principles reflects the difference between judicial review and merits review. In DPRS from [43], Smith AUJ explains the reasons for her Honour's conclusion that this court does not have jurisdiction to undertake judicial review of a decision of a magistrate made in the exercise of federal jurisdiction under the Family Law Act.
2. AWN further submits that his case is distinguishable from DPRS because he:

does not contend that the Magistrate reached an incorrect conclusion on parenting or child-safety risk. Rather, [AWN] contends that the process by which procedural decisions were made was legally defective, such that jurisdiction was not lawfully exercised. In particular, determinative material was introduced without notice; [AWN] was denied a reasonable opportunity to respond; and procedural directions were made before that opportunity arose. These matters engage supervisory review, not merits review.[35]

1. I do not accept AWN's submission that his case is distinguishable from DPRS on this basis. In DPRS, the application before the court was an application for judicial review. AWN's application is also for judicial review.
2. As Smith AUJ explained in DPRS,[36] judicial review of a decision made by a judicial officer is primarily concerned with jurisdictional error, that is whether the judicial officer made a decision outside the limits of the functions and powers conferred on the officer or did something which the officer lacked power to do. It does not extend to reviewing whether the judicial officer incorrectly decided something which the officer was authorised to decide.
3. To the extent that the applicant's case in DPRS fell outside the scope of judicial review, the court would not have entertained it. However, at least part of the applicant's case in DPRS alleged a denial of procedural fairness in making a decision and thereby alleged jurisdictional error. As such, at least that part of the applicant's case in DPRS fell within the scope of judicial review. It was that part of the applicant's case in DPRS that Smith AUJ determined that this court did not have jurisdiction to entertain, because the decision allegedly affected by jurisdictional error was made in the exercise of federal jurisdiction conferred by the Family Law Act.
4. As in DPRS, the learned Magistrate's decision of 5 December 2025 was made in the exercise of federal jurisdiction under the Family Law Act. Also as in DPRS, AWN alleges that the learned Magistrate denied him procedural fairness in making that decision and thereby alleges that his Honour's decision is affected by jurisdictional error. AWN's case is materially indistinguishable from the decision in DPRS.
5. In oral submissions, AWN argued that DPRS is distinguishable on another basis, namely that the orders he sought in the Application are not parenting orders but are instead protective or procedural orders.[37]
6. I do not accept that submission. The orders AWN sought were parenting orders.[38] That much is clear from the fact that AWN sought orders which would change the current parenting orders (which provide for NN to stay with each of her parents on alternate weeks) so that NN would live with AWN, and HTP would be prevented from having contact with NN.[39]
7. DPRS is materially indistinguishable from this case. This court does not have jurisdiction to entertain AWN's application for judicial review of the learned Magistrate's decision of 5 December 2025.

1. Even if, contrary to the above, this court does have jurisdiction to entertain AWN's application for judicial review, AWN has not demonstrated that he has an arguable case on any of the grounds on which he relies.

1. As I have noted, AWN submits that he was denied procedural fairness at the hearing on 5 December 2025 because:

(a) the learned Magistrate failed to accord AWN a reasonable opportunity to be heard on material child-safety evidence, namely the FVRO-related material; and

(b) the learned Magistrate relied on the ICL Letter when that document was provided late, so that AWN did not have an opportunity to respond, and its content was untested.

1. The learned Magistrate was plainly required to accord procedural fairness to AWN. However, it is important to recognise the purpose of the hearing before his Honour on 5 December 2025.
2. The hearing was a directions hearing held only two days after AWN had lodged the Application.[40] PJN had not had the opportunity to respond to AWN's application and it was not possible for her legal representative to attend the directions hearing due to the urgent listing of the Application for directions.[41]
3. It is apparent from the transcript of the hearing on 5 December 2025 that the purpose of the directions hearing was to decide how quickly the Application should be listed for hearing and determination. On that day, the learned Magistrate was required to accord procedural fairness to AWN on that issue.

1. The evidence relevant to how quickly the Application should be heard and determined comprised the Memorandum and the ICL Letter.
2. No one had tendered the FVRO-related material into evidence before the directions hearing and no one sought to do so at the directions hearing.[42] It was not incumbent on the learned Magistrate to admit all or part of the FVRO-related material into evidence on his Honour's own initiative at the directions hearing.
3. As the FVRO-related material was not in evidence before the learned Magistrate, to the extent that AWN was not given an opportunity to be heard on that material there was no denial of procedural fairness to him. In any event, AWN did make submissions to the learned Magistrate to the effect that the questions recorded in the ICL Letter were extremely limited and NN was not asked about 'the presence of adults in the household, exposure to behaviour or matters connected with the police material'.[43] AWN also made submissions to the effect that he had inspected the FVRO-related material and it was 'very suspicious'.[44]
4. Those submissions were made after the learned Magistrate had said that he had made his orders. However, as I have noted above at [13], before making the orders the learned Magistrate had said to AWN 'what I'm going to do is program the matter to an interim hearing in March, okay?' and AWN had responded 'Okay'. It was open to AWN to make his submissions at that point. He did not do so.
5. After hearing AWN's submissions, his Honour asked AWN '[i]s there anything else you want to say that is going to assist me today in terms of the orders that I've made?'[45] I do not take what the learned Magistrate said to AWN at this point to mean that his Honour was not open to revisiting the orders in light of AWN's submissions, should his Honour have considered that to be appropriate. The evidentiary value of the ICL Letter was plainly relevant to the making of those orders and if the learned Magistrate had been persuaded by AWN's submissions to place less reliance on the ICL Letter in determining whether NN was at risk, it was open to his Honour to revisit the orders.
6. In light of the above, I consider that AWN's argument that he was denied a reasonable opportunity to be heard on the FVRO-related material does not have reasonable prospects of success.

1. AWN contends that he was denied procedural fairness in respect of the ICL Letter because it was provided late, he did not have an opportunity to respond to the ICL Letter and its content was untested.
2. The ICL Letter was only provided to AWN on the morning of the directions hearing. It could not have been provided earlier, because the ICL Letter related to the Independent Children's Lawyer's conversation with NN that morning.
3. However, the ICL Letter comprises only two pages. The part of the ICL Letter which deals with the Independent Children's Lawyer's conversation with NN comprises only eight paragraphs. It would not take much time to absorb the content of the ICL Letter.
4. Further, AWN does not disagree with the content of the ICL Letter.[46]
5. As I have noted above, AWN also made submissions to the learned Magistrate on the ICL Letter.
6. In all the circumstances, I consider that AWN's argument that he was denied procedural fairness in respect of the ICL Letter does not have reasonable prospects of success.

Was the ICL Letter treated as determinative of the Application?

1. The ICL Letter provided the principal basis on which the issue under consideration on 5 December 2025 was decided: namely, how quickly the Application should be listed for hearing and determination.
2. However, the ICL Letter was not determinative of the Application itself. The Application will be determined on 11 March 2026 based on the evidence led and the submissions made on the Application. As to that hearing, the learned Magistrate observed on 5 December 2025 that:[47]

[I]f the matter needs to be further determined at an interim hearing, I will determine it. What, of course, the applicant needs to be well and truly aware of is, in the event that responding documents are filed and there is a further interim hearing to deal with this issue in light of the evidence that is currently before the court - and that is not, of course, considering whatever evidence is put by the respondent - there may be costs consequences in the event orders are not made as sought by the applicant. But I'm happy to program it. It will be programmed to a date in March to my next available spot, and we will deal with it then.

1. While his Honour's observations suggest that the Application's prospects of success are poor on the evidence before the Magistrates Court as at 5 December 2025, they are also consistent with the Application being heard and determined on 11 March 2026 on the evidence before that court, the submissions made and the law applicable as at the date of that hearing.
2. AWN's argument that the ICL Letter was determinative of the Application does not have reasonable prospects of success.

Did the learned Magistrate fail to have regard to mandatory relevant considerations or to properly consider the FVRO-related material?

1. Section 60CA of the Family Law Act provides that '[i]n 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 60CC of the Family Law Act relevantly provides:

(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)

(2) For the purposes of paragraph (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:

(i) the child; and

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

(b) any views expressed by the child[48]

...

(2A) In considering the matters set out in paragraph (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 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.

1. Section 60CF of the Family Law Act provides for how a court is to be informed of relevant family violence orders. In particular, s 60CF(1) provides that '[i]f a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that party must inform the court of the family violence order'. However, s 60CF(3) also provides that '[f]ailure to inform the court of the family violence order does not affect the validity of any order made by the court'.
2. Section 60CG of the Family Law Act provides:

(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

(a) is consistent with any family violence order; and

(b) does not expose a person to an unacceptable risk of family violence.

(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

1. AWN contends that the learned Magistrate failed to have regard to considerations to which his Honour was required to have regard under s 60CC(2)(a) and s 60CC(2A).
2. I will assume, without deciding, that the learned Magistrate was required to have regard to those mandatory relevant considerations when deciding how urgently the Application should be heard and determined. If the learned Magistrate was required to have regard to them, it is clear that his Honour did so.
3. As to considering what arrangements would promote NN's safety under s 60CC(2)(a), the learned Magistrate expressly considered the safety of NN - as well as NN's views as expressed through the Independent Children's Lawyer - and concluded that she was not at risk as at 5 December 2025. His Honour listed the Application to be heard and determined on 11 March 2026 on that basis.
4. Section 60CC(2A) is also directed to considering what arrangements would promote NN's safety. As to the considerations raised by that subsection, as I have noted no party had placed the FVRO-related material before the court. However, the FVRO-related material was referenced in the Application and was the subject of brief submissions.
5. AWN had raised the existence of a FVRO against HTP which protected HTP's daughter in the Application. AWN also submitted before the learned Magistrate at the directions hearing that the FVRO-related material was 'very suspicious'.
6. The Independent Children's Lawyer also briefly addressed the FVRO-related material in her submissions to the learned Magistrate in the following terms:

The police material, there is only effectively three documents, and that's a VRO order - restraining order details, history for court, and one incident report, which refers to the CAIT interview, but as your Honour would know, quite clearly, as soon as there is any type of allegation of the abuse of a child, CAIT do get involved because they've got the skills to interview children. So it's - reading between the lines, it would seem that [HTP] and his former wife have a very conflictual relationship, and I understand that they do have proceedings before this court that are ongoing, and even the original case assessment conference memorandum that had been provided indicated that the father in this matter was in contact with [HTP's] former wife, so this matter is also conflictual...[49]

1. To the extent that the learned Magistrate was required to consider the FVRO against HTP or any history of family violence, abuse or neglect involving HTP, his Honour did so to the extent possible on the evidence before the court.
2. AWN's argument that the learned Magistrate failed to have regard to mandatory relevant considerations does not have reasonable prospects of success.

Did the learned Magistrate fail to consider the Application in a manner consistent with M v M and thereby expose NN to unnecessary risk?

1. In M v M, the High Court heard an appeal from a decision to award custody of a child to her mother and deny access to her father.
2. The trial judge made that decision because, while his Honour was unable to conclude on the balance of probabilities that the father had abused the child, he considered that there was an unacceptable risk that the father would sexually abuse the child if he was given access. The appeal involved consideration of s 60D of the Family Law Act, which at the time required a court to 'regard the welfare of the child as the paramount consideration'.
3. In dismissing the appeal, the court (constituted by Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) relevantly observed that:

[T]he ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue...

[T]he resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities...

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a 'risk of serious harm', 'an element of risk' or 'an appreciable risk', 'a real possibility', a 'real risk', and an 'unacceptable risk'. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.[50] (citations omitted)

1. At the directions hearing, the learned Magistrate was not determining the Application. His Honour was deciding how quickly the Application was to be determined. In any event, the material before his Honour on 5 December 2025 as to the existence of any risk to NN rose no higher than that in alternate weeks NN was living in a house with her mother PJN and HTP, where HTP was (or had in the past been) the subject of a FVRO to protect HTP's daughter. Without diminishing the potential significance of that fact, the other evidence before the learned Magistrate at the time of the directions hearing (especially the ICL Letter) was inconsistent with NN being at risk in those circumstances.
2. The learned Magistrate determined that NN was not at risk and programmed the hearing and determination of the Application accordingly. If his Honour erred in doing so, he did not make a jurisdictional error. It was an error within jurisdiction. Nor did the learned Magistrate make an error of law on the face of the record.
3. AWN's argument that the learned Magistrate failed to consider the application in a manner consistent with M v M does not have reasonable prospects of success.

1. For completeness, I note that AWN seeks to rely on additional affidavits filed on 11 February 2026, 16 February 2026 and 25 February 2026 and on further written submissions filed on 25 February 2026.
2. AWN does not seek to add to or change his grounds of review by filing these documents. They are confined to what AWN describes as contextual matters.[51]
3. Those affidavits and submissions were filed after I had reserved my decision and without leave. I have nevertheless read those affidavits and submissions and considered them for the purpose of determining whether AWN's application for a review order should be granted. It is unnecessary for me to refer further to the content of those documents for the purpose of making that determination.
4. I also note that on 26 February 2026 AWN raised with my Associate whether the FVRO-related material could be put before me to address whether any denial of procedural fairness by the learned Magistrate was material. As I have concluded that AWN was not denied procedural fairness and the FVRO-related material was not before the learned Magistrate at the directions hearing on 5 December 2025, I declined to receive the FVRO-related material into evidence.
5. Finally I note that if, contrary to the above, I had concluded that I had jurisdiction and that an arguable case had been demonstrated on at least one ground of review, I would have had to consider whether AWN's application for a review order should be dismissed in the exercise of discretion[52] on the basis that AWN had a right of appeal[53] which he consciously failed to exercise.
6. Given my conclusions on jurisdiction and the lack of an arguable case, it is unnecessary for me to do more than note the potential relevance of this issue in determining AWN's application for a review order.

1. For these reasons, AWN's application for a review order will be dismissed.
2. As AWN's application was made ex parte, no question of costs arises.

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

[1] AWN confirmed at a directions hearing before me on 20 January 2026 that he was married to PJN for almost 15 years: ts 4.

[2] Supplementary affidavit of AWN filed 30 January 2026 [4].

[3] That is, the Principal Registrar or a registrar of the Family Court of Western Australia who is also appointed as a magistrate under the Magistrates Court Act 2004 (WA): see the Family Court Act 1997 (WA) s 5 (definition of 'family law magistrate'), s 25 and s 26.

[5] Supplementary affidavit of AWN filed 30 January 2026 [6] and Annexure A.

[6] Supplementary affidavit of AWN filed 30 January 2026 [7] - [8] and Annexure B.

[7] Supplementary affidavit of AWN filed 30 January 2026 [9] and Annexure C.

[8] Affidavit of AWN filed 11 February 2026 attaching Family Court Transcript, 5 December 2025, 3 (Family Court Transcript). All references to the Family Court Transcript are to page numbering in that transcript.

[9] While PJN is legally represented in the family law proceedings, AWN is not. AWN also represented himself in the application before me.

[10] Supplementary affidavit of AWN filed 30 January 2026 [9] and Annexure D.

[11] Affidavit of AWN filed 4 February 2026 [6] and Annexure A.

[12] I note that the allegation about the camera was raised with AWN by the learned Magistrate at the directions hearing on 5 December 2025. AWN explained that 'before [NN] got her mobile phone, if I needed to go shopping, and especially when she was sick, I would put it ‑ it's a ‑ it's a two-way camera. I can talk to her and she can talk to me. And whenever I got back from shopping, I would just take it out. So it's just something portable that we use as a communication device': Family Court Transcript 6.

[13] Affidavit of AWN filed 5 January 2026 Attachment A.

[16] Originating motion of AWN filed 5 January 2026.

[18] ts 16, 56 - 57. AWN does not complain that the admission into evidence of the Memorandum involved procedural unfairness, but rather says that the Memorandum was incomplete because it did not refer to the earlier history: ts 47.

[22] M v M (1988) 166 CLR 69.

[24] Ex Parte J C [2025] WASC 99 [18] - [32].

[25] I v Y [2017] WASCA 75 [8] (Murphy and Mitchell JJA); Boensch v Pascoe [2016] NSWCA 191 [10] (Leeming JA).

[26] Re DPRS; ex parte DPRS [2025] WASC 435 [44] (DPRS).

[29] See Dunne (a pseudonym) v Lloyd (a pseudonym) [2025] WASCA 119 [12] - [13] (Thomson P), [84] - [90] (Mitchell JA). See also, in respect of the Magistrates Court of Western Australia constituted by a Family Law Magistrate, the Family Law Act ss 69J, 69N and 69ZH.

[31] Affidavit of AWN filed 4 February 2026, Annexure A. NN will be a child of AWN and PJN's marriage even if she was born before AWN and PJN married and will remain so even if AWN and PJN are now divorced: Family Law Act s 60F(1)(a) and s 60F(2)(a).

[33] See for example Kitay v Frigger (No 2) [2024] WASC 113 [160] (Hill J); AVZ Minerals v Fat Tail Holdings Pty Ltd [2023] WASC 403 [25] - [30] (Howard J); Leighton v Garnham [No 4] [2016] WASC 134 [24] - [25] (Le Miere J); Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [37] (Simmonds J); cf Mustac v Medical Board of Western Australia [2007] WASCA 128 [37] ‑ [46] (Martin CJ).

[34] Written submissions of AWN filed 30 January 2026 [8] - [9] (emphasis in original).

[35] Written submissions of AWN filed 30 January 2026 [11] - [14] (emphasis in original).

[38] See the definition of 'parenting order' in the Family Law Act s 64B and its counterpart in the Family Court Act 1997 (WA) s 84.

[39] Supplementary affidavit of AWN filed 30 January 2026 Annexure C.

[46] Supplementary affidavit of AWN filed 30 January 2026 [27]; ts 54, 60 - 61.

[48] NN's views could be expressed through the Independent Children's Lawyer: see the Family Law Act s 60CD(2)(b).

[50] M v M (1988) 166 CLR 69, 76 - 78.

[51] See for example AWN's further written submissions filed 25 February 2026.

[52] As to which see Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 [116] (Corboy J); Blum v Boothman [2014] WASC 452 [7], [13], [15] - [20] (Mitchell J); Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [134] ‑ [140] (Martin CJ, with whom Wheeler JA agreed at [143]).

[53] It is unclear whether AWN had a right of appeal in this case. There is ordinarily a right of appeal to a single Judge of the Federal Circuit and Family Court of Australia (Division 1) from a judgment of the Magistrates Court of Western Australia exercising original jurisdiction under the Family Law Act (other than Part VIIIC): see the Federal Circuit and Family Court of Australia Act 2011 (Cth) s 26(1)(f)(i), s 28(1)(b) and s 32(1)(a); Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) r 4.02; Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.02 and r 13.03; the Family Court Act 1997 (WA) s 210. However, an appeal must not be brought from a judgment that is a decision to, or not to, adjourn or expedite a hearing: Federal Circuit and Family Court of Australia Act 2011 (Cth) s 26(2)(b)(ii). It is possible that the learned Magistrate's decision could be characterised as a decision of that kind.