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 2015, 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, and
  • Justice Aldridge.

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 1975, 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 2014–15, the Full Court sat for 24 weeks (including some part-weeks and including in some weeks in different locations).

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, and
  • Southern—Victoria, South Australia and Tasmania.

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

Trends in appeals

As a result of data quality activities conducted on appellate proceedings in the Court's electronic case management system, the Court has updated the historical data for the previous years. This means that figures published in this section may not be the same as those published in previous annual reports.

The number of appeals filed in 2014–15 increased by 18 per cent from 330 in 2013–14 to 389. The number of appeals finalised increased by six per cent to 356. The pending (active) cases as at 30 June 2015 was 289, which has increased from 256.

There was a 21 per cent increase in the number of appeals from the Federal Circuit Court to 216 cases, whilst appeals from the Family Court rose by 15 per cent.

Many appeals from 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 Notices of Appeal filed, finalised and pending during the last five financial years.

Table 4.1 Notice of appeals filed, finalised and pending by jurisdiction, 2010–11 to 2014–15

Filed 2010–11 2011–12 2012–13 2013–14 2014–15 % change from
2013–14 to
2014–15
Family Court of Australia 166 161 152 151 173 15%
Federal Circuit Court 201 213 166 179 216 21%
Appeals filed 367 374 318 330 389 18%
Per cent from Family Court of Australia 45% 43% 48% 46% 44% -2%
Per cent from Federal Circuit Court 55% 57% 52% 54% 56% 2%
             
Finalised 2010–11 2011–12 2012–13 2013–14 2014–15 % change from
2013–14 to
2014–15
Family Court of Australia 152 140 150 150 143 -5%
Federal Circuit Court 203 188 184 187 213 14%
Appeals finalised 355 328 334 337 356 6%
Per cent from Family Court of Australia 43% 43% 45% 45% 40% -5%
Per cent from Federal Circuit Court 57% 57% 55% 55% 60% 5%
             
Pending 2010–11 2011–12 2012–13 2013–14 2014–15 % change from
2013–14 to
2014–15
Family Court of Australia 120 141 143 144 174 21%
Federal Circuit Court 113 138 120 112 115 3%
Appeals pending 233 279 263 256 289 13%
Per cent from Family Court of Australia 52% 51% 54% 56% 60% 4%
Per cent from Federal Circuit Court 48% 49% 46% 44% 40% -4%

Figure 4.1 Notice of appeals, 2010–11 to 2014–15

This figure shows the notice of appeals from 2010–11 to 2014–15.

In addition to the Notice of Appeal, appellate proceedings may include a number of other applications filed seeking orders directly relating to the appeal. These can affect how the appeal will proceed. Such applications are a significant resource burden on the Appeal Division as they often require interlocutory hearings and judgments prior to, and during, dealing with the Notice of Appeal.

Table 4.2 shows the number of these additional applications that are filed.

Table 4.2 Other applications filed in appeal cases, 2010–11 to 2014–15

Filed 2010–11 2011–12 2012–13 2013–14 2014–15
Application for Extension of Time 51 39 28 63 63
Application in an Appeal 271 237 235 249 250
Notice of Cross-Appeal 15 16 10 11 14

Proportion of notices of appeal filed by jurisdiction

The proportion of family law appeals arising from decrees of the Family Court has fallen slightly from 46 per cent to 44 per cent in 2014–15.

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, 2010–11 to 2014–15

This figure shows the proportion of notice of appeals filed by jurisdiction of decree from 2010–11 to 2014–15.

The number of appeals that were allowed or dismissed increased by six per cent to 58 per cent in 2014–15.

During 2014–15, the total number of appeals withdrawn or abandoned fell by seven per cent, from 159 to 148. Withdrawn applications fell from 67 to 57, while there were 91 abandoned cases which is steady compared to 2013–14.

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, 2010–11 to 2014–15

This figure shows the notice of appeals finalised by type of finalisation from 2010–11 to 2014–15.

Figure 4.4 Proportion of Notice of appeals finalised by type of finalisation, 2010–11 to 2014–15

This figure shows the proportion of notice of appeals finalised by type of finalisation from 2010–11 to 2014–15.
Note: Figures may not add to 100%, this is due to rounding only.

Appeal demographics

The historical trend in gender remains generally consistent, although there was a small increase in the proportion of males lodging appeals (57 per cent) than females (40 per cent) (Figure 4.5).

Figure 4.6 shows a change in the trend towards self-representation. In 2014–15, the proportion of self-represented appellants increased to 39 per cent.

Figure 4.5 Proportion of appellants by gender, 2010–11 to 2014–15

This figure shows the proportion of appellants by gender from 2010–11 to 2014–15.

Figure 4.6 Proportion of appellants' representation status, 2010–11 to 2014–15

This figure shows the proportion of appellants’ representation status from 2010–11 to 2014–15.
Note: Figures may not add to 100%, this is due to rounding only.

Age of finalised appeals

Of the appeals finalised in 2014–15, 75 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, 2010–11 to 2014–15

This figure shows months to finalise appeals from 2010–11 to 2014–15.
Note: Figures may not add to 100%, this is due to rounding only.

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 2014–15:

  • 24 applications for special leave to appeal were filed in the High Court from judgments of the Family Court
  • 22 applications for special leave were determined or disposed of by the High Court: 19 were refused, one discontinued, two deemed abandoned and none granted, and
  • No appeals were heard by the High Court.

In Focus

How the Commonwealth Courts Portal saved the day

Ms M. was due to marry her fiancé at a marriage ceremony booked at a local court in NSW. The bride and groom turned up for the ceremony, ready to start their lives together but before the ceremony could commence, the bride was required to demonstrate proof of divorce from a previous marriage. Unfortunately Ms M. did not bring the proof of divorce order with her.

The local court called the National Enquiry Centre (NEC) as the bride stood anxiously by the phone. The NEC emailed the court the details on how to register and log onto the Commonwealth Courts Portal, on behalf of the bride.

In a matter of minutes, the bride was able to register, link to her file and print the proof of divorce order.

The bride and groom were relieved that the ceremony didn't have to be re-scheduled and the marriage could go ahead.

Did you know?

If a divorce was finalised after 13 February 2010, a proof of divorce can be obtained from the Commonwealth Courts Portal at no cost.

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