Appeal Division

The Appeal Division of the Family Court of Australia (FCoA) 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. To facilitate access to litigants in regional cities and throughout Australia, some appeals are conducted by video-link and other electronic means.

As part of the Court’s commitment to the Government’s digital continuity policy, the Appeal Division is increasingly using electronic documents and, by Practice Direction 1 of 2017, requires that transcript be filed in electronic form only. Further, Practice Direction 2 of 2017 confirms the FCoA is moving to implement a Digital Court File for proceedings in the Court.

The composition of the bench of the Full Court of the FCoA 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 2018, the judges assigned to the Appeal Division were as follows:

Chief Justice

Chief Justice Pascoe AC CVO

Deputy Chief Justice

Deputy Chief Justice Alstergren

Members of Appeal Division

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

Appeals

An appeal lies to the Full Court of the Family Court (and, in certain cases, only with leave) from a decree of:

  • the FCoA Trial Division
  • the Family Court of Western Australia
  • Supreme Courts of states and territories (single judge)
  • Federal Circuit Court of Australia (FCC), and
  • Magistrates Court of Western Australia (family law magistrate)

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

If the appeal is from a decree of the FCC or the Magistrates Court of Western Australia, pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth), the Chief Justice may direct that the appeal be heard by a single judge rather than the Full Court.

Full Court sittings and administration

During 2017–18, the Full Court sat for 20 weeks and during eight of those sitting weeks, the Court sat in two locations concurrently.

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 the National Appeals Registrar, together with Regional Appeals Registrars 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

In 2017–18, 390 appeals were filed, a 13 per cent increase from the number of appeals filed in 2016–17 which was 344.

The Appeal Division delivered 265 judgments during 2017–18, compared to 279 judgments during 2016–17. At 30 June 2018, there were 27 appeal judgments outstanding compared with 46 judgments at 30 June 2017.

In 2017–18, 68 per cent of all judgments were delivered within three months. This figure has increased from 60 per cent of judgments being delivered within three months in 2012–13. Twenty-eight per cent of appeal judgments were delivered ex tempore.

A total of 370 appeals were finalised in 2017–18, leaving 220 pending (active) matters as at 30 June 2018.

Figure 4.1: Notice of appeals filed, finalised, pending, 2013–14 to 2017–18

The Court undertakes ongoing data quality review of the Court’s electronic case management system. Some statistics previously published have been updated. To ensure consistency with the data already published, the historical data has not been re-calculated or published. The statistics published in Figure 4.1 for the financial years 2015–16 and 2016–17 contain some discrepancy affecting the total number of cases pending.

Of the appeals filed, 201 were from decisions of the FCC or the Magistrates Court of Western Australia. In the reporting year, 189 appeals were filed from decisions of the FCoA.

Forty-eight appeals from the FCC or Magistrates Court of Western Australia in 2017–18 were dealt with by a single judge. Fifty per cent of all appeals finalised in 2017–18 were deemed abandoned or the appeal was withdrawn, generally without a hearing of the appeal.

Figure 4.2: Proportion of notices of appeal filed by jurisdiction, 2013–14 to 2017–18

Appeals from the Family Court of Western Australia have been counted with appeals from the FCoA. Appeals from family law magistrates in Western Australia have been counted with appeals from the FCC.

As 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, 2013–14 to 2017–18

Filed

2013–14

2014–15

2015–16

2016–17

2017–18

Number of notices of appeal filed

330

389

371

344

390

Application for extension of time

63

63

45

49

54

Application in an appeal

249

250

290

279

223

Notice of cross-appeal

11

14

11

9

11

Total appellate proceedings

653

716

717

681

678

Not all appeals require a hearing as they may be discontinued, abandoned or resolved by agreement. In 2017–18, 50 per cent of appeals finalised required a hearing (183 appeals). The number of appeals allowed increased from 69 in 2016–17 to 82 in 2017–18.

Figure 4.3: Notice of appeals finalised by type of finalisation, 2013–14 to 2017–18

Eighty-seven per cent of the appeals finalised in 2017–18 were finalised within 12 months, an increase from 75 per cent in 2016–17.

In 2017–18, 46 per cent of appellants were unrepresented. This figure has increased since 2013–14 when 38 per cent of appellants were unrepresented.

High Court

During 2017–18:

  • 13 applications for special leave to appeal were filed in the High Court from judgments of the Family Court
  • 17 applications for special leave were determined or disposed of by the High Court: 16 were refused and one was granted, and
  • the one appeal heard by the High Court was allowed.