Appeal Division

The Appeal Division of the 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, all appeal documents including appeal books and transcript are filed in electronic form and used in that form by the Appeal Division. Practice Direction 2 of 2017 confirms the Family Court is moving to implement a Digital Court File for all proceedings in the Court.

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 2020, the judges assigned to the Appeal Division were as follows:

Chief Justice
Chief Justice William Alstergren

Deputy Chief Justice
Deputy Chief Justice Robert McClelland

Other 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 2019–20, the Full Court sat for 22 weeks and during four 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.

All appeal sitting weeks and hearings have continued throughout the COVID-19 pandemic in 2020 with hearings conducted by video and teleconferencing.

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, currently the Principal Registrar.

Appeal Division performance

In 2019–20, 445 appeals were filed, an 11 per cent increase from the number of appeals filed in 2018–19, which was 400.

The Appeal Division delivered 304 judgments during 2019–20, compared to 257 judgments during 2018–19. At 30 June 2020, there were 29 appeal judgments outstanding, compared with 36 judgments at 30 June 2019.

In 2019–20, over two thirds of appeal judgments were delivered within three months. 16 per cent of appeal judgments were delivered ex tempore compared to 22 per cent in 2018–19.

A total of 448 appeals were finalised in 2019–20, leaving 213 pending (active) matters as at 30 June 2020.

Of the appeals filed, 247 were from decisions of the Federal Circuit Court or the Magistrates Court of Western Australia. In the reporting year, 198 appeals were filed from decisions of the Family Court.

Efficiencies created from electronic appeal hearings

During 2019–20, the Appeal Division finalised 448 appeals, an 18 per cent increase in the number of appeals finalised compared to 2018–19. With the impact of COVID-19, this was only possible due to the Appeal Division’s adoption of electronic hearings conducted by video and teleconference. This included where the judges on the Full Court were appearing from different locations to hear the appeal, generating time and cost efficiencies.

Forty-eight appeals from the Federal Circuit Court or Magistrates Court of Western Australia in 2019–20 were dealt with by a single judge. Thirty-nine per cent of all appeals finalised in 2019–20 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; leave to issue subpoenas 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, 2015–16 to 2019–20

Filed	2015–16	2016–17	2017–18	2018–19	2019–20
Number of notices of appeal filed	371	344	390	360	377
Application for extension of time	45	49	54	53	46
Other applications in an appeal	290	279	223	247	302
Notice of cross-appeal	11	9	11	7	6
Total appellate proceedings	717	681	678	667	731

Not all appeals require a hearing as they may be discontinued, abandoned or resolved by agreement. In 2019–20, 62 per cent of appeals finalised required a hearing (275 appeals). The number of appeals allowed increased from 95 in 2018–19, to 130 in 2019–20.

Eighty-nine per cent of the appeals finalised in 2019–20 were finalised within 12 months, compared to 92 per cent in 2018–19.

In 2019–20, 36 per cent of appellants were unrepresented, a decrease from 43 per cent in 2018–19.

High Court

During 2019–20:

• 11 applications for special leave to appeal were filed in the High Court from judgments of the Family Court
• 14 applications for special leave were determined or disposed of by the High Court: 12 were refused and two were granted, and
• there were no appeals heard by the High Court.