W v S [No 3] [2026] WASCA 136

Court of Appeal (WA)•Seaward JA, Bowskill AJA and Solomon J•24 September 2026

Case guardian Person with a disability Consent orders Best interests De facto property

Final property orders made by consent were set aside because neither the case guardian nor the magistrate addressed whether the settlement was in the best interests of the party with a disability, as r 109(1)(d) of the Family Court Rules 2021 (WA) requires.

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“At the heart of this issue is not simply the filing of an affidavit; it is the failure to address a fundamental prerequisite to the exercise of the court’s discretion to give its approval to an order which will bind a person under a disability.”

at [49]

Summary

The WA Court of Appeal allowed an appeal and set aside final financial orders made by consent, where Rule 109(d) of the Family Court Rules 2021 (WA) was not complied with.

These proceedings involved a property adjustment claim in the Family Court of Western Australia arising from a de facto relationship. A case guardian had been appointed for the Appellant in the FCWA proceedings. Final orders were made by consent at trial in November 2024.

Rule 109(d) requires that a case guardian:

“(d) if seeking a consent order (except an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests.”

In this case, trial affidavits had been filed, including by the case guardian. However, there was no evidence on the transcript that the presiding magistrate had read the material on the file, save that he stated that he was content the orders were just and equitable.

Mr W appealed on several grounds, including a miscarriage of justice where the case guardian failed to file an affidavit in compliance with Rule 109(d). The appeal succeeded on this ground.

The Court emphasised that compliance with the obligation to address a disabled person’s best interests is not a mere procedural step, but a fundamental safeguard. Although the magistrate had discretion to dispense with the Rules, the Court found that this should not be construed as permitting the Court to dispense with a substantive requirement, which was to protect a person with a disability.

The matter was remitted to the Magistrates Court (FCWA) for re-hearing. In a later judgment delivered on 21 October 2026, it was ordered that each party pay their own costs.

Procedural protections exist for a reason, particularly where a person’s capacity to protect their own interests is affected. Practitioners should familiarise themselves with the Rules, and procedural requirements.

Key Takeaways

✓

Best interests is a separate test from just and equitable. The magistrate was satisfied that the orders were just and equitable under s 205ZG(3) of the Family Court Act 1997 (WA), but the Court held that this is a distinct and separate requirement, and the transcript contained no reference to the best interests of the party with a disability ([15], [45]).

✓

It cannot be left to inference. The Court declined to infer that the magistrate had considered best interests from the trial affidavits, the papers for the judicial officer, or the involvement of the Public Trustee, solicitors and senior counsel. Those were protective factors but did not address compliance with r 109(1)(d) ([41] to [45]).

✓

The case guardian carries a heavy burden. The case guardian must weigh the advantages and disadvantages of the compromise, including the prospects at trial, the certainty of settlement and the costs saved, and then place the evidence relied on before the Court so it can make a properly informed decision ([39] to [41]).

✓

The power to dispense with the Rules will not cure it. Rule 12 of the Family Court Rules 2021 (WA) should not be construed as permitting the Court to dispense with a substantive requirement designed to protect a person with a disability, and in any event nothing suggested the magistrate had consciously dispensed with it ([49]).

✓

The outcome says nothing about the merits. The Court stressed that the agreement may well be in Mr W’s best interests, but that question was never addressed. On remittal the matter is to be expedited and may, if necessary, proceed on the filed material in Mr W’s absence ([58] to [60]).