Appeal Division

Sections 21A, 22 (2AA), (2AB) and (2AC) of the Family Law Act 1975 provide for an Appeal Division for the Family Court.

The members of the Appeal Division of the Court are the Chief Justice, the Deputy Chief Justice and such other judges, not exceeding nine in number, as are assigned to the Appeal Division.

At 30 June 2013, the judges assigned to the Appeal Division were:

  • Justice Finn
  • Justice May
  • Justice Thackray (Chief Judge of the Family Court of Western Australia)
  • Justice Strickland
  • Justice Ainslie-Wallace
  • Justice Ryan
  • Justice Murphy.

The Full Court of the Family Court of Australia is made up of three or more judges of the Court; the majority must be members of the Appeal Division (Family Law Act 1975 s 4).

Appeals

The appellate jurisdiction of the Family Court is defined in Part X of the Family Law Act, in Part VIII of the Child Support (Registration and Collection) Act 1988 and Part 7 of the Child Support (Assessment) Act 1989.

An appeal lies to the Full Court from a decree of the Family Court, constituted otherwise than as a Full Court, exercising jurisdiction under the Family Law Act and (with leave) under the Child Support Acts.

An appeal also lies to the Full Court of the Family Court from a decree of the Family Court of Western Australia; or the Supreme Court of a state or a territory, constituted by a single judge exercising jurisdiction under the Family Law Act and (with leave) under the Child Support Acts.

An appeal also lies to the Family Court of Australia from a decree of the Federal Circuit Court of Australia exercising jurisdiction under the Family Law Act and (with leave) the Child Support Acts. The jurisdiction of the Court in relation to such appeals is to be exercised by a Full Court unless the Chief Justice considers it appropriate for a single judge to exercise the jurisdiction of the court in relation to such an appeal (s 94AAA(3)).

Full Court sittings

During 2012–13, the Full Court sat for 23 weeks (including some part weeks). Appeals are also heard by way of video-link from time to time.

Administration of appeals

Appeals are administered by an Appeals Registrar in three areas:

  • Northern—Queensland, northern New South Wales and Northern Territory
  • Eastern—eastern, western and southern New South Wales and the Australian Capital Territory
  • Southern—Victoria, South Australia and Tasmania.

Western Australia is separately administered by a Registrar of the Family Court of Western Australia.

Trend in appeals

The number of appeals filed in 2012–13 decreased by 13 per cent from 373 in 2011–12 to 326, while the number of appeals finalised was steady with 333. The pending (active) cases have also remained steady at 273.

There were 19 per cent less appeals from the Federal Circuit Court whilst appeals from the Family Court (including those from the Family Court of Western Australia) fell by four per cent.

Many appeals from of the Federal Circuit Court are dealt with by a single judge and do not require the convening of a bench of three or more judges.

Table 4.1 and Figure 4.1 show the trend in appeal notices filed, finalised and pending during the last five financial years.

Table 4.1 Notice of appeals filed, finalised and pending by jurisdiction, 2008–09 to 2012–13

Filed

2008–09

2009–10

2010–11

2011–12

2012–13

% change
from 2011–12
to 2012–13*

Family Court of Australia

160

113

135

153

147

-4%

Federal Circuit Court of Australia

204

202

193

220

179

-19%

Appeals filed

364

315

328

373

326

-13%

Per cent from the Family Court of Australia

44%

36%

41%

41%

45%

4%

Per cent from the Federal Circuit Court of Australia

56%

64%

59%

59%

55%

-4%

 

Finalised

2008–09

2009–10

2010–11

2011–12

2012–13

% change
from 2011–12
to 2012–13*

Family Court of Australia

170

144

129

138

140

1%

Federal Circuit Court of Australia

191

201

196

194

193

-1%

Appeals finalised

361

345

325

332

333

0%

Per cent from the Family Court of Australia

47%

42%

40%

42%

42%

0%

Per cent from the Federal Circuit Court of Australia

53%

58%

60%

58%

58%

0%

 

Pending

2008–09

2009–10

2010–11

2011–12

2012–13

% change
from 2011–12
to 2012–13*

Family Court of Australia

124

93

97

132

143

8%

Federal Circuit Court of Australia

106

108

106

141

130

-8%

Appeals pending

230

201

203

273

273

0%

Per cent from the Family Court of Australia

54%

46%

48%

48%

52%

4%

Per cent from the Federal Circuit Court of Australia

46%

54%

52%

52%

48%

-4%

* Rounded to whole numbers.

Figure 4.1 Notice of appeals, 2008–09 to 2012–13

Figure 4.1 Notice of appeals, 2008–09 to 2012–13.

Proportion of notices of appeal filed by jurisdiction

The proportion of Family Law Court appeals arising from decrees of the Family Court increased from 41 per cent to 45 per cent in 2012–13.

Figure 4.2 shows the proportion of appeal filings resulting from a decree made either in the Federal Circuit Court or in the Family Court.

Figure 4.2 Proportion of notice of appeals filed by jurisdiction of decree, 2008–09 to 2012–13

Figure 4.2 Proportion of notice of appeals filed by jurisdiction of decree, 2008–09 to 2012–13.

The number of appeals that were allowed or dismissed increased by three per cent to 59 per cent in 2012–13.

The total number of appeals withdrawn or abandoned fell by seven per cent from 146 to 136. Withdrawn applications fell 65 to 52 while abandoned applications increased from 81 to 84.

Figure 4.3 shows the trend in the manner in which appeals were finalised.

Figure 4.3 Notice of appeals finalised by type of finalisation, 2008–09 to 2012–13

Figure 4.3 Notice of appeals finalised by type of finalisation, 2008–09 to 2012–13.

Figure 4.4 Proportion of Notice of appeals finalised by type of finalisation, 2008–09 to 2012–13

Figure 4.4 Proportion of Notice of appeals finalised by type of finalisation, 2008–09 to 2012–13.

Note: Figures may add to more than 100%, this is due to rounding only.

Appeal demographics

The historical trend in gender remains generally consistent, though there was a slight increase of males being more likely to lodge appeals (60 per cent) than females (37 per cent) (Figure 4.5)

Figure 4.6 shows a change in the trend towards self representation. In 2012–13, the proportion of self represented appellants remained steady at 38 per cent.

Figure 4.5 Proportion of appellants by gender, 2008–09 to 2012–13

Figure 4.5 Proportion of appellants by gender, 2008–09 to 2012–13.

Figure 4.6 Proportion of appellants’ representation status, 2008–09 to 2012–13

Figure 4.6 Proportion of appellants' representation status, 2008–09 to 2012–13.

Age of finalised appeals

Of the appeals finalised within the 2012–13 financial year, 73 per cent were finalised within 12 months. Figure 4.7 shows the time taken to finalise appeals over the past five years.

Figure 4.7 Months to finalise appeals, 2008–09 to 2012–13

Figure 4.7 Months to finalise appeals, 2008–09 to 2012–13.

Appeals to the High Court of Australia

Section 95 of the Family Law Act 1975 provides that an appeal does not lie to the High Court from a decree of a court exercising jurisdiction under the Family Law Act, whether original or appellate, except by special leave of the High Court.

During 2012–13:

  • 14 applications for special leave to appeal were filed in the High Court from judgments of the Family Court
  • seven applications for special leave were determined by the High Court, seven were refused and none granted
  • one appeal was heard and allowed by the High Court.