Appeal Division

The Appeal Division of the Family Court of Australia (Family Court) hears 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. Practice Direction 2 of 2017 confirms the Family Court is moving to implement a Digital Court File for proceedings in the Court. Appeal books are now being prepared in electronic form for use in most Full Bench appeals.

The composition of the bench of the Full Court of the Family Court hearing an appeal is 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 2019, the judges assigned to the Appeal Division were as follows:

Chief Justice
Chief Justice William Alstergren

Deputy Chief Justice
Deputy Chief Justice Robert McClelland

Members of Appeal Division
– Justice Strickland
– Justice Ainslie-Wallace
– Justice Ryan
– Justice Aldridge
– Justice Kent
– Justice Watts
– Justice Austin
– Justice Tree

Appeals

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

• the Family Court Trial Division
• the Family Court of Western Australia
• Supreme Courts of states and territories (single judge)
• Federal Circuit Court of Australia (Federal Circuit Court), 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 Federal Circuit Court 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 2018–19, the Full Court sat for 20 weeks and during five 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 Appeal Registrar, together with Regional Appeal 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 2018–19, 400 appeals were filed, a 3 per cent increase from the number of appeals filed in 2017–18, which was 390.

The Appeal Division delivered 257 judgments during 2018–19, compared to 265 judgments during 2017–18. At 30 June 2019, there were 36 appeal judgments outstanding, compared with 27 judgments at 30 June 2018.

In 2018–19, 72 per cent of appeal judgments were delivered within three months. This figure has increased from 60 per cent of all judgments being delivered within three months in 2012–13. Twenty-two per cent of appeal judgments were delivered ex tempore compared to 28 per cent in 2017–18.

A total of 379 appeals were finalised in 2018–19, leaving 224 pending (active) matters as at 30 June 2019.

Of the appeals filed, 267 were from decisions of the Federal Circuit Court or the Magistrates Court of Western Australia. In the reporting year, 133 appeals were filed from decisions of the Family Court.

Forty-six appeals from the Federal Circuit Court or Magistrates Court of Western Australia in 2018–19 were dealt with by a single judge. Thirty-eight per cent of all appeals finalised in 2018–19 were deemed abandoned or the appeal was withdrawn, generally without a hearing of the appeal.

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.

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, 2014–15 to 2018–19

Filed	2014–15	2015–16	2016–17	2017–18	2018–19
Number of notices of appeal filed	389	371	344	390	360
Application for extension of time	63	45	49	54	53
Other applications in an appeal	250	290	279	223	247
Notice of cross-appeal	14	11	9	11	7
Total appellate proceedings	716	717	681	678	667

Not all appeals require a hearing as they may be discontinued, abandoned or resolved by agreement. In 2018–19, the appeals finalised which required a hearing increased to 62 per cent (209 appeals). The number of appeals allowed increased from 82 in 2017–18, to 95 in 2018–19.

Ninety-two per cent of the appeals finalised in 2018–19 were finalised within 12 months, an increase from 87 per cent in 2017–18.

In 2018–19, 43 per cent of appellants were unrepresented. This figure has increased since 2013–14 when 38 per cent of appellants were unrepresented.

High Court

During 2018–19:

• 11 applications for special leave to appeal were filed in the High Court from judgments of the Family Court
• 9 applications for special leave were determined or disposed of by the High Court: 8 were refused and one was granted, and
• of the two appeals heard by the High Court, one was refused and one was allowed.