Appeal Division

The Appeal Division of the Family Court of Australia deals with the appeals from decisions of both federal and state courts. The members of the Appeal Division, with support from members of the Trial Division, hear appeals throughout the year in the five mainland capital cities and other locations as necessary. Given the geographical challenges of Australia, some appeals are conducted by video-link and other electronic means.

Reflecting the current digital environment, the Appeal Division is increasingly using electronic documents and, by Practice Direction 1 of 2017, now requires that transcript be filed in electronic form only.

The Full Court of the Family Court hearing an appeal is made up of three or more judges of the Court, the majority of whom must be members of the Appeal Division.

Members of the Appeal Division

At 30 June 2017 the judges assigned to the Appeal Division were:

Chief Justice

Chief Justice Bryant

Deputy Chief Justice

(Position currently vacant)

Members of Appeal division

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

Appeals

An appeal lies to the Full Court of the Family Court (sometimes only with leave) from a decree of:

  • the Family Court (not sitting as a Full Court)
  • the Family Court of Western Australia
  • Supreme Courts of States and Territories (single judge)
  • Federal Circuit Court of Australia
  • Magistrates Court of Western Australia (family law magistrate)

exercising jurisdiction under the Family Law Act 1975 or in some instances under the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989.

If the appeal is from a decree of the Federal Circuit Court of Australia or the Magistrates Court of Western Australia, the Chief Justice may direct that it be heard by a single judge (s 94AAA(3) of the Family Law Act).

Full Court sittings and administration

During 2016–17 the Full Court sat for 20 weeks (in some weeks in two locations).

Judges of the Appeal Division hear appeals and associated interlocutory applications as a single Judge during other weeks of the year.

In addition, the Full Court conducts special sittings as required, for example to hear urgent appeals.

Appeals are administered by an Appeals Registrar in three regions:

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

Western Australia is administered by a registrar of the Family Court of Western Australia.

Appeal Division Performance

Due to ongoing data quality activities in the Court’s electronic case management system, some statistics previously published may not entirely accurately reflect the available data. To ensure consistency in the statistical time series, re-calculated historical data is not published.

In 2016–17, 344 appeals were filed, a seven per cent decrease from 2015–16. The appeals filed include two cases stated for the opinion of the Full Court.

The focus of the Court in previous years to increase the disposal rate for appeals, continued in 2016–17. During 2016–17, 279 judgments were delivered compared to 220 judgments during 2015–16. At 30 June 2017, there were 46 appeal judgments outstanding.

In 2016–17 almost 73 per cent of all judgments were delivered within three months (progressively increased from 60 per cent in 2012–13).

The number of appeals finalised increased by six per cent to 377. There were 208 pending (active) appeals at 30 June 2017, decreased by 23 per cent compared to 30 June 2016.

Figure 4.1: Notice of appeals filed, finalised, pending 2012–13 to 2016–17

 Figure 4.1: Notice of appeals filed, finalised, pending 2012–13 to 2016–17

Of the appeals filed, 189 were from decisions of the Federal Circuit Court or the Magistrates Court of Western Australia. In the reporting year, 155 appeals were filed from decisions of the Family Court. One case was stated from each of the Family Court and the Federal Circuit Court.

Fifty-one of 206 appeals from the Federal Circuit Court or Magistrates Court of Western Australia finalised in 2016–17 were dealt with by a single judge.

Figure 4.2: Proportion of notices of appeal filed by jurisdiction 2012–13 to 2016–17

 Figure 4.2: Proportion of notices of appeal filed by jurisdiction 2012–13 to 2016–17

Appeals from the Family Court of Western Australia have been counted with appeals from the Family Court of Australia. Appeals from Family Law Magistrates in Western Australia have been counted with appeals from the Federal Circuit Court.

A s well as the Notice of Appeal, Notices of Cross-Appeal and a number of other applications seeking orders directly relating to the appeal are commonly filed.

The orders sought in the applications in an appeal include: an extension of time to appeal, reinstate, expedite, stay or summarily dismiss appeals; security for costs; purchase of transcript; or receive further evidence. Such applications often require interlocutory hearings and judgments.

Table 4.1 shows the number of these additional applications.

Table 4.1: All proceedings in appeal cases, 2012–13 to 2016–17

Filed

2012–13

2013–14

2014–15

2015–16

2016–17

No. of Notices of Appeals filed

318

330

389

371

344

Application for extension of time

28

63

63

45

49

Application in an appeal

235

249

250

290

279

Notice of cross-appeal

10

11

14

11

9

Total appellate proceedings

591

653

716

717

681

Not all appeals require a hearing by a single judge or the Full Court as they may be discontinued, abandoned or resolved by agreement. In 2016–17, 55 per cent of appeals finalised required a hearing (207 appeals). The proportion of appeals dismissed increased significantly.

Figure 4.3: Notice of appeals finalised by type of finalisation 2012–13 to 2016–17

 Figure 4.3: Notice of appeals finalised by type of finalisation 2012–13 to 2016–17

Seventy-five per cent of the appeals finalised in 2016–17 were finalised within 12 months.

Figure 4.4: Proportion of notices of appeal finalised by type of finalisation, 2012–13 to 2016–17

 Figure 4.4: Proportion of notices of appeal finalised by type of finalisation, 2012–13 to 2016–17

The proportion of parties participating in appeals unrepresented has increased since 2013–14. In 2016–17, 44 per cent of appellants were unrepresented.

The historical trend in gender remains fairly consistent, with only a small decrease in the proportion of males lodging appeals (54 per cent).

High Court

During 2016–17:

  • 29 applications for special leave to appeal were filed in the High Court from judgments of the Family Court
  • 29 applications for special leave were determined or disposed of by the High Court: 27 were refused and two were granted, and
  • the one appeal heard by the High Court was dismissed.

In focus: Court Network

The Court Network (CN) is a frontline community organisation that supports court users to access the court system. CN’s role is complementary to that provided by legal and other services within the courts and tribunals system.

CN focuses on the needs of people at court by providing non-legal support, information and appropriate referrals to services such as family violence, housing, mental health, community legal centres and by empowering and increasing the confidence of court users to manage the requirements of the courts.

CN’s service is delivered by approximately 300 trained volunteers (called ‘Networkers’) who provide tailored, impartial and non-judgmental support. It is an important component of access to justice, particularly for more vulnerable and disadvantaged court users, who may be attending court for the first time and are unfamiliar with court rules and processes.

In Victoria, the service operates out of 28 court precincts, including all CBD courts, VCAT and the Coroners Court and a number of metropolitan and regional Magistrates’ Courts. Since 1990, CN has been delivering a service to people attending the Melbourne and Dandenong registries of the Federal Circuit Court of Australia and the Family Court of Australia. CN has a team of six networkers operating in the Dandenong registry and 22 in the Melbourne registry.

Networkers connect with court users predominantly through an active outreach style – ‘working the floor’ – introducing themselves to people who are entering the Court or waiting for their matter to be heard. They also accept referrals from court officials and service organisations (either on the day or prior to the court matter being heard). Networkers are highly visible and well-known to court staff and other services operating at the courts.

Networkers provide information about:

  • what to expect in court
  • court rules and process
  • what to do if you feel unsafe, and
  • referral to legal services and community resources.

For more information see www.courtnetwork.com.au