LexisNexis Practical Guidance®

An appeal lies against final decisions made by a judge of the Family Court or Federal Circuit Court of Australia. This applies in all cases except that an appeal does not lie from a divorce order after the order has taken effect: s 93 of the Family Law Act 1975. In Western Australia an appeal lies against final decisions made by a judicial officer of the Family Court of Western Australia, however, whether the appeal lies to the State’s Supreme Court or the Family Court of Australia depends on whether the decision being appealed was made pursuant to State law (Family Court Act 1997 (WA)) or Commonwealth law (Family Law Act 1975 (Cth)). Practitioners in Western Australia should first consult “Appeals in Western Australia” for the practice and procedure of appeals as it applies in that state.

Appeals must be lodged within the time prescribed by the relevant rule: s 94(1A) of the Family Law Act 1975. In most cases this is 28 days: r 22.03 of the Family Law Rules 2004. The appeal period may be extended by an application for leave in which to extend that period, but practitioners should be aware that the appeal period will not be extended without sufficient reason.

The Notice of Appeal must set out particulars of the court and judicial officer who made the relevant orders (judge at first instance), the date of those orders, the grounds of appeal and the orders sought in place of those made in the original orders.

Once an appeal is lodged, it is usual that the appeal registry will issue a series of directions relating to the conduct of the appeal. The appeal will have a different case number than the original proceedings and will treated as separate and distinct proceedings with its own procedural orders and directions. Care must be taken that the appellant strictly complies with all directions and timetables that have been given. Failure to comply with those directions and timetables may see the appeal “abandoned” and a costs order awarded in favour of the respondent(s): r 22.21 of the Family Law Rules 2004.

There are many types of appeals that may be appropriate and care must be given to ensure the appropriate rules are followed.

The first step in respect of an appeal is, therefore, to consider the type of appeal you need and then to identify, and to comply with, the rules relating to that type of appeal.

The types of appeals are:

• •an appeal from a court of summary jurisdiction;
• •an appeal from the Federal Circuit Court (excluding Western Australia);
• •an appeal to the Full Court of the Family Court;
• •an appeal from interlocutory decrees and orders;
• •stated cases; and
• •additionally in Western Australia:
• • ◦an appeal from a Magistrate in the Perth CBD;
• • ◦an appeal from a Magistrates court outside the Perth CBD; and
• • ◦an appeal from a Registrar’s decision.

Note: In Western Australia, there is a significant difference to the appeals process as compared to the rest of Australia. This is due to the jurisdictional issues arising from the absence of a deferral of power to the Commonwealth for de facto parties and children born outside of marriage and because of the different court structures which apply. Practitioners in Western Australia should first consult Appeals in Western Australia to determine the application of other guidance notes in this subtopic to family law proceedings in Western Australia. Reference in this guidance note to “Family Court” refers to the Family Court of Australia. For WA practitioners, reference to the Family Court of Western Australia will be stated as such to distinguish between the courts.

Note: There is currently a Bill before Parliament which purports to merge the Family Court of Australia and the Federal Circuit of Australia into a new court. The Bill seeks to significantly amend the appeal process for decisions arising from the Family Court of Australia, Federal Circuit Court of Australia and the Family Court of WA.

An appeal from a court of summary jurisdiction that is a local court in a State or Territory is an appeal to a single judge of the Family Court. This appeal is a hearing “de novo”; that is, the matter commences from the beginning and is determined again by a judge of the Family Court having regard to all evidence previously available and all evidence available at the date of the rehearing in the Family Court.

Since it is a hearing de novo, there is no requirement to show that the Local Court Magistrate erred either in fact or in law. It is the role of the Family Court judge on appeal to determine the order that he/she thinks is appropriate, based on the evidence presented before him/her at the time of the hearing of the appeal.

See Appeal from a court of summary jurisdiction.

An appeal from the Federal Circuit Court is an appeal to the Family Court.

An appeal to the Family Court is instituted by the lodgment of a Notice of Appeal. A Notice of Appeal should be lodged with the appeals registry of the Family Court. The appeals registry is generally situated in the Family Court Registry in the capital city of each state of Australia and correspondence is generally addressed to the Regional Appeals Registrar. A Notice of Appeal can be lodged by fax provided arrangements are made with the appeals registry for the payment of the applicable filing fee (refer to the website of the Court for up to date fees).

When a Notice of Appeal is lodged, the Chief Justice must decide whether it is appropriate for the jurisdiction of the Full Court to be exercised by a single judge or by a full bench of the Family Court, consisting of three or more judges. Usually, an appeal from a Federal Circuit Court judge’s decision is heard by a single judge of the Family Court. There is no right of appeal or review against the decision of the Chief Justice as to the way in which the appeal will be heard.

An appeal from a decision of a Federal Circuit Court judge must be lodged within 28 days of the order from which an appeal is lodged. Once a Notice of Appeal has been filed, the appeals registry will make directions as to the running of the appeal, including the preparation of appeal books and the filing of a summary of argument and list of authorities: r 22.23 of the Family Law Rules 2004.

See Appeal from the Federal Circuit Court.

Where the decision of the court appealed from was not a final decision, then leave to file an appeal may be required before an appeal can progress: s 94AA(1) of the Family Law Act 1975. Regulation 15A(1) of the Family Law Regulations 1984 confirms that an interlocutory decree, other than a decree in relation to a child welfare matter, is a decision in respect of which leave to appeal is required before the appeal can be instituted. An order which does not finally determine the rights of the parties in the principal case is an interlocutory decree: see Tadgell v Hahn.Notes

See Appeal from the Federal Circuit Court.

See also Leave to appeal.

An appeal to the Full Court of the Family Court lies against a decision made by a single judge of the Family Court: r 22.14 of the Family Law Rules 2004.

An appeal is instituted by the lodgment of a Notice of Appeal. The Notice of Appeal must be lodged within 28 days of the date of the order appealed from. Once a Notice of Appeal has been filed, the appeals registrar in chambers will make directions as to the running of the appeal, including the preparation of appeal books and the filing of a summary of argument and list of authorities.

Failure to comply with directions may have the appeal abandoned and a costs order awarded against the appellant.

See Appeal to the Full Court of the Family Court.

A stated case is a case under the Family Law Act 1975, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 where either the court or a party ask the Full Court to determine a question of law arising in a case: r 22.46 of the Family Law Rules.

In a stated case, one of the parties asks the presiding judge to refer an issue of law to the Full Court for a ruling on that issue of law prior to the finalisation of the proceedings before the trial judge. The purpose of seeking such an order is to avoid the trial judge from making an error at law which would thereby necessitate an appeal to the Full Court. The presiding judge must agree to refer state the case stated. In some cases, the judge is the one who proposes that the case be statedreferred but the application itself must be made by at least one of the parties.

See Stated cases.

In the Perth metro area all family law jurisdiction in Western Australia is exercised by the Family Court of Western Australia (“Family Court of WA”) under the Family Court Act (being the only State court established under the Family Law Act 1975 (Cth) in 1978) and by order of a proclamation (which operates as between the State’s Supreme Court and Family Court of WA). The Family Court of WA will transfer matters to be dealt with by the Magistrates Court (sitting in the same building and which is the only court of summary jurisdiction in the metro area permitted to deal with family law matters). Family Law Magistrates deal with nearly all procedural matters, programming and interlocutory hearings and now also deal with child welfare and property settlement matters that are non-complex or of less than two days duration. Any appeal from a Family Law Magistrate is similar to an appeal from a Federal Circuit Court judge and is to the Full Court of the Family Court of Australia.

The Family Court also has registrars who conduct procedural hearings, conciliation conferences, non-contentious divorce hearings and other tasks. Orders made by registrars can be appealed to a single judge of the Family Court of Western Australia as of right and the hearing is "de novo".

Appeals from any judge of the Family Court of Western Australia is to the Full Court of the Family Court of Australia and the usual rules apply. If the appeal is in relation to a de facto matter then the appeal is made to the Supreme Court of Western Australia and the rules of that court apply. The form, practice and procedure is quite different in the Supreme Court of WA from the Family Court and the judges hearing the appeal in the Supreme Court are not specialist family law judges.

Outside of the Perth CBD a party may bring an application and seek interim orders before any Magistrate. Generally these matters are dealt with in the Magistrate’s Court of the major regional centres such as Albany, Bunbury, Kalgoorlie, Geraldton, Karratha, Port Hedland and Broome. The Magistrates have limited power and are generally only involved in making consent orders or dealing with interim applications.

The proceedings are then transferred from that country town’s the Magistrate’s Court to the Family Court of Western Australia.

Note: The Family Court of Western Australia travels on circuit to Albany, Bunbury, Kalgoorlie, Geraldton, Karratha and Broome and the transferred matters are then generally dealt with in the circuit cycle towns. Such proceedings are technically Family Court of WA proceedings and follow the rules, practice and procedure of the Family Court of WA although in many cases the judges will make their own procedural orders for the conduct of the proceedings.

The guidance notes in this subtopic dealing with appeals from courts of summary jurisdiction, the Federal Circuit Court, appeals from interlocutory decrees and orders and appeals to the Full Court of the Family Court of Australia otherwise apply in Western Australia.

See Appeals in Western Australia.

There is a Bill currently before Parliament which purports to merge the Family Court of Australia and Federal Circuit Court of Australia into a new court – the Federal Circuit and Family Court of Australia to offer a single point of entry for all federal family law matters. The features of the Bill include that the existing judges in the Family Court of Australia will sit in Div 1 and hear only all family law matters. Div 2 will comprise of the existing judges of the Federal Circuit Court who will hear both family law matters and general federal law matters. A new Family Law Appeal Division in the Federal Court of Australia will hear appeals in family law matters from the newly created Federal Circuit and Family Court of Australia.

At the time of writing the Bill has not passed and the purported commencement date of 1 January 2019 is unlikely to proceed given that there have been calls for further consultation.