FAMILY
•LAW •
COUNCIL
FAMILY LAW APPEALS AND
REVIEW
An evaluation of the appeal and
review of family law decisions
___________________
•
JUNE 1996
•
© Commonwealth of
Australia
ISBN [details]
This work is
copyright. Apart from any use as
permitted under the Copyright Act
1968, no part may be reproduced by any process without prior written
permission.
The Family Law Council
The Family Law Council
is a statutory authority which was established by section 115 of the Family Law Act 1975. The functions of Council are set out in
sub-section 115(3) of the Family Law
Act which states:
It is the function of the Council to advise and make recommendations to
the Attorney-General, either of its own motion or upon request made to it by the
Attorney-General, concerning -
(a) the
working of this Act and other legislation relating to family
law;
(b) the
working of legal aid in relation to family law; and
(c) any
other matters relating to family law.
Contents
The Family Law Council
Composition of Council
The Appeals Committee
Terms of Reference
Summary of Recommendations
1. Introduction
2. Present law
and practice
3. Consultation
4. Statistics
on Appeals
5. The appeal
systems of other jurisdictions
6. Improving
the existing appeals process
Appendices
Appendix 1: List of persons
and organisations making submissions.
Composition of the Family Law
Council
Members of the Family
Law Council at the time of
production of this report were:
Mrs Jennifer
Boland
(Chairperson)
Ms Dale
Bagshaw
Mr Rod
Burr
Dr Nigel
Collings
Associate Professor
Regina Graycar
The Hon Justice
Michael Hannon
Ms Louise
Hansen
Mr John
Hodgins
Ms Annemaree
Lanteri
The Hon Justice
Michelle May
Mr Richard
Morgan
Mr Des
Semple
Secretariat
Mr Bill Hughes
Director of Research.
Ms Serena
Beresford-Wylie Legal 1
(to October 1995).
Mr David Wallace
Legal 2 (from February 1996)
Dr Jo Herlihy
Executive Officer
Ms Bim Engler
Administrative Officer
The
Appeals Committee
The members of
Council’s Appeals Committee are:
The Hon Justice
Michelle May Convenor
Ms Barbara
Guthrie
Appeal Registrar, Family Court of Australia.
Mr John Hodgins
Family Law Council
Ms Annemarie
Lanteri
Family Law Council
Mr Peter Rose QC
Barrister-at-Law, Sydney
Terms of
Reference
The Family Law Council recognises that if the
objective of access to justice is to be met then the appeals process must be
capable of providing timely, inexpensive and just review. Consequently, the
Family Law Council decided at its October 1994 meeting to establish a committee
to undertake an inquiry into the conduct of appeals under the Family Law Act 1975.
The aim of the inquiry is to examine legislation, practice and
procedure in relation to appeals and to make recommendations for any possible
improvements to the appeals process which may enhance access to justice for
parties who are dissatisfied with decisions made under the
Act.
The terms of reference
of the Committee are:
1. To examine
legislation, practice and procedure with respect to appeals under the Family Law Act 1975 including appeals
from:
• both
interlocutory and final decisions of the Family Court;
•
decisions of judicial registrars; and
•
decisions of Magistrates and Local Courts.
2. To examine
costs in relation to appeals, including but not limited
to:
• the
cost of transcripts; and
• in
consultation with the Legal Aid and Family Services Division of the
Attorney-General’s Department, the Federal Proceedings (Costs) Act
1981.
3. To make
recommendations for any possible changes to legislation, practice or procedure
which may improve the accessibility and efficiency of the appeals
process.
4. To determine
whether any proposed changes to the present appeals system may have unintended
consequences and to take account of any such consequences in making
recommendations.
In fulfilling these
terms of reference, the Committee will consult fully with representatives of the
courts, the legal profession and other persons or organisations who have an
interest in the appeals process.
SUMMARY OF
RECOMMENDATIONS
The following
recommendations are made in this report:
Recommendation 1
Statistics
(para 4.19)
(a)
That appeals statistics currently kept by the Regional Appeals Registrars
should include (i) more detail about the outcome of appeals; (ii) the sex of the
applicant by the type of order sought; (iii) the matter appealed from; (iv) and
the source of the appeal. This
would not require additional resources and would considerably enhance the
accuracy and usefulness of appeals statistics.
(b)
In the longer term, when the court’s information technology platform is
upgraded the court should consult with the Family Law Council, the Australian
Bureau of Statistics and the Australian Institute of Family Studies and fully
review the quality and usefulness of the data it
collects.
Recommendation 2
Procedures of other courts (para
5.30)
The Family Court be
asked to examine developments in other Australian and overseas Courts of Appeal
that operate within a common law system to see whether the adoption of some of
the procedures of those courts would assist in streamlining the procedures and
processes of the Family Court and in reducing costs. The procedures and processes which may
be of particular interest to the Family Court include:
•
Courts of Appeal of less than 3 Judges;
• How
best to deal with litigants in person;
• The
use of arguments in writing;
•
Limits on oral arguments:
•
Greater use of staff lawyers;
•
Expedited hearings; and
• The
use of telephone hearings and video links.
Recommendation 3
Cost of transcripts
(para 6.08)
Steps should be taken
to reduce the cost of transcripts.
To this end the function of producing official transcripts of Family
Court proceedings should be subject to competitive
tender.
There should be a
means tested scheme under which persons in need may apply for the cost of
transcripts to be reduced or waived.
Decisions about the reduction or waiver of the fees should be made by a
Registrar of the Family Court, the Legal Aid Commissions or the agency providing
the reporting service. The court or
the Legal Aid Commissions, as appropriate, should be fully funded to provide
such assistance to needy applicants or, in the case of a reporting agency,
tenders should be sought on the basis that free transcripts will be provided to
legally aided applicants or persons who satisfy a hardship
test.
Recommendation 4
Numbering of appeal book pages
(para 6.12)
That the Family Court
examine the current appeal book page numbering system, the possibility of
further eliminating unnecessary material from appeal books and the use of
electronic storage of appeal books with a view to reducing costs of appeal
books.
Recommendation 5
Federal Proceedings (Costs) Act
(para 6.16)
That the maximum
amounts allowed under the Federal
Proceedings (Costs) Act 1981 should be reviewed. The maximum amount which applies in
relation to Family Court appeals should be increased to the same level as
applies to Federal Court appeals.
Recommendation 6
Solicitors costs estimates
(para 6.19)
That solicitors be
required to prepare costs estimates as part of their advice in relation to a
proposed appeal and to provide estimates to their clients at the time of filing
the notice of appeal.
Recommendation 7
Delays
(para 6.26)
That Case Management
Guidelines should be amended to provide the following:
(a) where a judgment has
been delivered ex tempore, written reasons should be provided to the parties
within 14 days;
(b) where no judgment has
been given, but orders have been made, written reasons should be provided within
14 days of the orders having been made; and
(c) the time for appeal
should not commence to run until written reasons for the judgment have been
published to the parties.
Recommendation 8
Conciliation conferences
(para 6.28)
The Family Court
should publicise the fact that it offers conciliation conferences to parties to
appeals with a view to resolving appeals which can be satisfactorily resolved by
this means.
Recommendation 9
Courts of Summary Jurisdiction (para
6.37)
That the appeal
procedures from courts of summary jurisdiction should be reviewed following the
establishment of a scheme of specialist family law magistrates as recommended by
Council in its report Magistrates in
Family Law.
1:
INTRODUCTION
1.01
The role of an appeals system, to review primary decisions, is integral
to the administration of a justice system.
Access to an appeals system and the opportunity for judicial review must
be seen to exist for people to have confidence in the objectivity of, and
consistency in, the application of the law.
1.02
The broad objects of any process of appeal should be
to:
•
Correct errors of law and fact and thereby to apply the law fairly and
accurately between the parties on a case by case basis;
•
Establish principles of law and guidelines for the application of the law
so that through an adequate reporting system consistency and predictability of
results can be achieved for the better advice of parties and for the guidance of
the court; and
•
Expound and reinforce policies of public interest in the interpretation
and application of the Family Law
Act.
1.03
There have been a number of cases which have laid down the proper
approach in relation to appeals from discretionary judgments. The leading authority in Australia is House v R where the High Court
said:
If the Judge acts upon
a wrong principle, if he allows extraneous or irrelevant matters to guide or
affect him, if he mistakes the facts, if he does not take into account some
material consideration, then his determination should be reviewed and the
appellate court may exercise its own discretion in substitution for his if it
has the materials for doing so. It
may not appear how the primary Judge has reached the result embodied in the
order, but, if upon the facts it is unreasonable or plainly unjust, the
appellate court may infer that in some way there has been a failure properly to
exercise the discretion which the law reposes in the court of first
instance. In such a case, although
the nature of the error may not be discoverable, the exercise of the discretion
is reviewed on the ground that a substantial wrong has in fact
occurred.
1.04
In Sharman v Evans Barwick CJ made the
following points:
... the function of a
court of appeal, in my opinion, is not to offer what in connection with another
discipline would be called a “second opinion”. Such a court is strictly confined to the
remedy of error in the trial or in the assessment of the trial Judge. It cannot be too strongly said that a
mere difference of opinion as to what ought to have been the proper award ...
does not indicate error on the part of the trial
Judge...
I think it is relevant
to the decision of this appeal to remember that our system by which differences
between citizens and, for that matter, between the state and the citizen are
resolved is one of trial. It is not
a system of resolution by appeal... I have said elsewhere, and I venture to
repeat, that resolution of difference by trial rather than by appeal is of great
public benefit. It tends to earlier
finality and greater certainty than would be the case if cases were chiefly
decided on appeal.
1.05
In a jurisdiction which is federal, and which is operated through a large
number of registries and circuit courts throughout the
country, which includes such varied socio economically and demographically
diverse locations, the need for a system of information exchange and networking
between Judges of first instance is obvious. In order to maintain an even level of
interpretation and approach, Judges move around the country to allow that cross
fertilisation to take place. The
Appeals Court and the system of appeals is a further drawing together of what is
a widely disparate experience.
1.06
Statistics. A review of the family law appeal
process would be assisted if the available statistics on Family Court appeals
were to reveal more about the system.
In the absence of more comprehensive statistics about the system it is
difficult to make a judgment about whether the appeal system is achieving the
objectives referred to above.
1.07
Better information would enable an assessment of the outcomes of the
appeal process by reference to the success rate of appeals from the various
primary decision makers (registrars, magistrates, judicial registrars and
Judges) and the success rate of appeals from different types of
determinations. The court at least
should know whether there are particular patterns of outcomes of appeals which
might throw light upon persistently idiosyncratic approaches or particular
problems from different locations which are not apparently satisfactorily
addressed in the overall system.
1.08
For example, a comparison of the success rate of appeals in property
matters as against child custody matters, might merely indicate the difficulties
of decision making in the latter case compared with the more objectively
assessable area of property division.
However, if the outcomes of appeals were to be tabulated by reference to
the gender, age, ethnicity, language and other such characteristics of the
parties to the appeal, as well as the location in which the primary decision was
made, this sort of data would enable a realistic assessment to be made about
such matters as accessibility of the appeal system to different groups within
society. At present such a
realistic assessment is not possible.
1.09
Council is aware that its role is not to recommend to government courses
of action which are not practicable, having in mind economic and other relevant
factors. In its 20 year history
Council has consistently been aware of the advice given to it by the
Attorney-General at its inaugural meeting, when he said that the basic role of
the Council was to put forward “practical law reform that an Attorney-General
from time to time can undertake.” Council is also aware that the wider
issue of family law statistics is a matter of interest to a number of bodies,
such as the Australian Bureau of Statistics and the Australian Institute of
Family Studies, as well as the court, and that there is a need to upgrade the
court’s Information Technology system.
1.10
With these factors in mind the recommendations of Council touch on some
of the more easily addressed issues of data collection. However, Council considers that in the
longer term the wider issues will need to be addressed. At the same time, it should be said that
the available data enables the Council to draw some useful conclusions about the
current appeal system and to make some suggestions which aim at improving that
system.
1.11
Limitations on the appeal
process.
In the context of family law in Australia, the limitations on the appeal
process in the overall judicial system are perhaps more restricting than in some
other jurisdictions. The wide
discretionary power of the Family Court in dealing with the vast majority of
matters which arise before it is well known. The approach of the Family Law Act 1975 in specifying lists of factors to be
taken into account when making decisions, without dictating the weight or
priority to be given to those matters, leaves the primary decision makers a
particularly wide discretion.
1.12
Those wide discretionary powers have been noted in a variety of property
cases, for example, particularly in the cases of Mallet and Norbis. The Family Law Reform Act 1995 does not
significantly change this situation.
1.13
In applying the Family Law
Act, the courts grapple with cases which have an enormously wide range of
fact situations where language, background, culture, gender and economic
circumstances, and the very nature of the relationship between the parties, can
produce situations seemingly similar, but in fact quite different. The need for the application of law and
its interpretation to be discretionary in such instances is clear. The difficulty this presents in
structuring and applying a process of appeal is
inevitable.
1.14
At the same time, a pluralist society needs the binding force of clearly
established guidelines as to what is seen as acceptable or unacceptable
parenting behaviour and appropriate standards for the fair disentanglement of
the financial aspects of personal relationships. The appeal system seeks to acknowledge
this diversity and at the same time to draw out the common
principles.
1.15
Costs.
A further major factor which limits the degree to which the objectives of
an appeal system can be achieved is that of costs. Given the volume of litigation, some
formal or informal mechanism must operate to reduce the cost to the public purse
of what Barwick CJ referred to as “resolution by appeal”. The very particularity of individual
cases might otherwise lead to a plethora of appeals arising from each individual
having a genuine view that the circumstances of their own case allow a result
different from that achieved at first instance.
1.16
The cost of appeals to the parties also militates against an open-ended
appeal process. Unlike the
corporate clientele of other jurisdictions, the parties in the Family Court meet
their expenses out of their own pockets.
The opportunity to achieve a result by the financial exhaustion of the
other party through a series of appeals must be extremely limited to avoid
injustice.
1.17
The need for limits on access to an appeal system is generally
acknowledged. Resolution by appeal
(or by exhaustion) does not suggest a healthy structure. While, on the one hand, providing a
mechanism for judicial review which is accessible and fair, is important,
consideration must always be given to appropriate limitations on access to the
appeal system so as to achieve a practical balance.
1.18
Traditionally jurisdictions have relied on limitations on appeal as of
right by reference to time frames, a specified set of grounds for appeal and
perhaps a limitation on the quantum of subject matter by way of threshold in
financial disputes.
1.19
One of the main objectives of the appeal process - that is, to provide
principles and guidelines for the application of the law - requires that there
be some limitation on appeals so that the number of appeals which pull together
the threads of a range of first instance decisions is manageable. The restriction of cost, both public and
private, must also justify some limitation on the appeal
process.
1.20
The costs of appeals in the family law jurisdiction are substantially
added to by the cost of production of the transcript on which the appeal must be
founded, rather than the actual costs of the hearing of the appeal itself. The cost of transcripts may prove to be
the greatest single component of costs incurred in some cases. In others, it will approach the cost of
the hearing. The cost of appeal
books is also a significant factor.
1.21
The cost to the public purse of misconceived, on occasions frivolous or
vexatious appeals may increase in proportion to the number of litigants in
person who are moving through the system.
While an emphasis on access to justice suggests that inevitably more
people will use the justice system for the resolution of their disputes, the
“demystification” of the system itself must also encourage an increase in
litigants in person at all levels.
The involvement of a litigant in person in proceedings can result in
those proceedings being prolonged, and therefore the costs to the taxpayer and
other parties is generally increased by the litigant in person. Although the number of appeals overall
is relatively small, and these issues will be apparent in even smaller numbers,
they should be flagged as issues to monitor for the
future.
Outline of this
report
1.22
This report addresses the operation of the Family Court appeal system
under the following headings:
•
The present law and practice are summarised in chapter
2;
•
Chapter 3 outlines the Council’s consultation process in relation to its
study of the appeal system;
•
Available statistics on appeals are discussed in chapter 4;
•
Some of the features of the appeal systems of other jurisdictions are
looked at in chapter 5 with a view to showing the types of changes the Family
Court might consider; and
•
Some immediate proposals for improving the current system are advanced in
chapter 6.
[Return to contents]
2:
PRESENT LAW AND PRACTICE
2.01
The Family Law Act , Family
Law Regulations and Family Law Rules provide for various forms of appeal and
review of decisions of Judges, magistrates and registrars. This chapter outlines the relevant
provisions of the Act, Regulations and Rules together with some matters covered
in the Practice Directions and Case Management Guidelines issued by the Family
Court.
2.02
An appeal is available from courts of summary jurisdiction. Such an appeal may be heard by a single
Judge or the Full Court of the Family Court (subsection 28(2)), the latter being
unusual. The Supreme Court of the
Northern Territory also has jurisdiction to hear appeals from a court of summary
jurisdiction in that Territory.
2.03
Under section 94 of the Family Law
Act an appeal lies to the Full Court of the Family Court
from:
(a) a decree of the
Family Court, constituted otherwise than as a Full Court, exercising original or
appellate jurisdiction under the Family
Law Act or any other legislation; or
(b) a Family Court of
a State or a Supreme Court of a State or Territory constituted by a single Judge
exercising original or appellate jurisdiction under the Family Law Act or in proceedings
continued in accordance with section 9 of the Act.
2.04
Under section 94AA of the Family
Law Act an appeal to the Full Court of the Family Court may lie as of right
or it may require leave of the Full Court.
2.05
The Full Court is constituted by three or more Judges of the Family
Court, where a majority of those Judges are members of the Appeal
Division.
Meaning of appeal and
review
2.06
The common meaning of “appeal” would seem to include both an application
for the reconsideration of a decision and an application for the review of a
matter (see, for example, the Australian Concise Oxford Dictionary, 2nd
edition). Subsection 4(1) of the Family Law Act, a definition section,
states that “appeal” includes an application for a rehearing. While this definition extends to the de
novo hearing of an appeal from a decree of a court of summary jurisdiction
(section 96(4)) it is not so described in relation to an appeal from an exercise
of delegated power by a registrar or judicial registrar (sections 26C and 37A(9)
and (10)). In that case, it is
described as a “review”.
Appeals from courts of
summary jurisdiction
2.07
Power.
Section 96 of the Family Law
Act provides for appeals from the decrees of courts of summary jurisdiction
to the Family Court or to the Supreme Court of a State or Territory. The Governor-General issued a
proclamation pursuant to subsection 96(3) on 27 May 1976 ending appeals to the
Supreme Courts of all jurisdictions other than Western Australia and the
Northern Territory. All appeals
from Magistrates Courts in the other States and the ACT go to the Family
Court.
2.08
A “decree” is defined to mean a decree, judgment or order, including a
decree nisi and an order dismissing
an application or refusing to make a decree or order (Subsection
4(1)).
2.09
Appeals must be instituted not later than one month after the date on
which the decree appealed from was made or within such further time as a Judge
directs (Subsection 96(1A), Order 32 Rule
22(2)).
2.10
Procedure.
Subsection 96(4) of the Act provides that a court hearing an appeal under
this section must proceed by way of a hearing de novo . The court may, however, receive as
evidence any record of evidence given, including any affidavit filed or exhibit
received, in the court of summary jurisdiction.
2.11
A court hearing an appeal under section 96 may refer the appeal to a Full
Court of the Family Court (Subsection 96(5)). In such a case the Full Court may
proceed by way of hearing de novo,
order that questions of fact be tried by a Judge, determine questions of law
arising in the proceedings and remit the appeal to a Judge for hearing in
accordance with directions and make such other decrees as the Full Court
considers appropriate (Subsection 96(6)).
2.12
Stay of proceedings.
An appeal pursuant to section 96 of the Act does not operate as a stay of
proceedings (Order 32, Rule
24). However, where such an
appeal has been instituted the magistrate who made the decree or, if not
available, a Judge of the Family Court (or Supreme Court) may make an order
staying the operation of the decree until the appeal is
decided.
2.13
Practice.
An appeal under section 96 of the Act must be instituted by filing a
notice of appeal in accordance with Form 43 (Order 32, Rule 22). Within two days of filing the notice of
appeal the appellant must have served a sealed copy of the notice on each other
party and filed a sealed copy in the court appealed from (Order 32, Rule 23). The rules require the Registrar of the
court appealed from to send all the documents in his or her possession to the
Registrar of the court in which the appeal has been instituted as soon as
practicable after the filing of a sealed copy of the notice of appeal (Order 32,
Rule 25). In practice, however, the
Family Court Registrar writes to the lower court advising that the appeal has
been lodged and requesting the relevant file.
2.14
The Case Management Guidelines provide that appeals from courts of
summary jurisdiction to the Family Court are to be referred to the Registry
Manager and allocated a date for hearing within 4 weeks from the date of
filing. The appeal is to be listed
in a Registrars List on a day when a Judge is sitting in the Judicial Duty
List.
Review of decisions of
registrars
2.15
Power. A
party to proceedings in which a registrar has exercised any of the powers of the
court pursuant to a delegation under subsection 37A(1) of the Family Law Act may apply to the court to
review that exercise of power (Subsection 37A(9)).
2.16
The party has 7 days after the day on which the registrar exercised the
power to file an application for review of the registrar’s decision (Order 36A
Rule (5)(2)). The time limit for
filing such an application may be extended by the court or a registrar or by the
consent of all the parties to the proceedings (Order 36A Rule
6(2)).
2.17
Procedure.
A court reviewing an exercise of power by a registrar is required to
proceed by way of a hearing de novo ,
however the court may receive as evidence any affidavit or exhibit tendered
before the Judicial Registrar, the transcript of the proceedings before the
Judicial Registrar or, if a transcript is not available, an affidavit sworn by a
person who was present at the hearing (Order36A Rule 7(4)). The court may, by leave, receive further
evidence.
Review of decisions of
judicial registrars
2.18
Power.
The Family Court may, on application by a party to proceedings review the
exercise of a power delegated to a Judicial Registrar and make such orders as it
considers appropriate in relation to the matter in which the power was exercised
(Subsections 26C(1) and (2)).
2.19
In the case of powers exercised by a Judicial Registrar, which are powers
delegated to Registrars generally, a party has 7 days after the day on which the
Judicial Registrar exercised the power in which to apply for review (Order 36A
Rule 5(1)(a)). In the case of
powers delegated only to Judicial Registrars parties have one month after the
day on which the Judicial Registrar
exercised the power in which to apply for review (Order 36A Rule 5(1)(b)). The prescribed times to apply for the
review may be extended in any proceedings by the court or a Judicial Registrar
or by the consent of all the parties to those proceedings whether or not the
time has expired (Order 36A Rule 6(1)).
2.20
The court may review the exercise of power delegated to a Judicial
Registrar of its own motion (Subsection 26C(2)). No express time limits apply in these
circumstances.
2.21
Procedure.
A court reviewing an exercise of power by a Judicial Registrar is
required to proceed by way of a hearing de novo , however the court may receive
as evidence any affidavit or exhibit tendered before the Judicial Registrar, the
transcript of the proceedings before the Judicial Registrar or, if a transcript
is not available, an affidavit sworn by a person who was present at the hearing
(Order36A Rule 7(4)). The court
may, by leave, receive further evidence.
The court may receive and have regard to the reasons for judgment given
by the Judicial Registrar (Parrot v
Public Trustee of NSW (1994) FLC 92-472).
2.22
It is important to mention that the appeal process is different for
Judges hearing interim or interlocutory matters as opposed to judicial
registrars. In such circumstances
an appeal against a Judge’s decision is heard by a Full Court, whereas an appeal
against a judicial registrar’s decision is reviewed before a single
Judge.
2.23
Stay of proceedings.
An application for review of an exercise of power by a Judicial Registrar
does not operate as a stay but the Judicial Registrar who exercised the power,
or if not available another Judicial Registrar or Judge, may make an order
staying the exercise of the power until the application for review has been
decided (Order 36A Rule 7(3A)).
2.24
Practice.
An application for review of exercise of power by a Judicial
Registrar may be made in accordance with Form 44 (Order 36A, Rule 7). A sealed copy of the application must be
provided to each other party to the proceedings within 7 days after the
application is filed in the court.
Once filed the application is given a return date before a Registrar
exercising delegated power pursuant to section 37A of the Family Law Act who then lists the matter
for hearing before a Judge.
2.25
The Case Management Guidelines provide that applications for review of
decisions made in urgent, interim or procedural matters are to be listed in the
Registrars List on a day when a Judge is sitting in Judicial Duty List or is
otherwise available to hear the matter.
If the review is unable to proceed on that date, any necessary directions
are to be made and the matter referred to the List Clerk for the allocation of a
hearing date in the next available list.
If an application for review of decision is made in a defended property
matter or where the hearing of a review of a decision will take one day or more,
the matter is to be referred to the Case Management Judge for allocation of a
hearing.
Appeals to the Full
Court
2.26
Power
Section 94(1) of the Family Law
Act provides that, subject to
section 94AA, an appeal lies to a Full Court of the Family Court from a decree
of the Family Court (usually constituted by a single Judge), a decree of a
Family Court of a State exercising federal jurisdiction (only Western Australia
has such a court) or a single Judge of a Supreme Court exercising family law
jurisdiction (as previously noted, only the Western Australian and Northern
Territory Supreme Courts retain such jurisdiction).
2.27
An appeal to a Full Court must be instituted not later than one month
after the day on which the decree appealed from was made unless further time is
allowed by a Judge of a court with jurisdiction under the Act (Subsection
94(1A); Order 32 Rule 2(2)).
2.28
Section 94AA provides that leave to appeal is required in respect of an
interlocutory decree (other than one relating to a child welfare matter). Applications for leave must be
determined by a Full Court. The
section requires the Rules of Court to make provision for applications for leave
to be dealt with without the necessity for an oral hearing. Reference should be made to the High
Court decision in Adam P Brown Male
Fashions Pty Ltd v Philip Morris Inc The High Court held that it will
normally be reluctant to review an interlocutory order concerning practice or
procedure unless this results in a substantial injustice to a party. In Rutherford and Rutherford the Full Court of the
Family Court held that the principles expressed in Adam P Brown Male Fashions Pty Ltd v Philip
Morris Inc were to be applied in granting leave under section
94AA(1).
2.29
In addition to hearing appeals a Full Court may hear and determine
questions of law pursuant to a case stated by a Judge of a court hearing
proceedings which may be appealed from (Section 94A).
2.30
Procedure A hearing before the Full Court follows
the same principles of appellate review as in other intermediate courts of
appeal (Mallet v Mallet (1984) FLC
91-507).
2.31
When hearing an appeal the Full Court may affirm, reverse or vary the
original decree or decision, or parts of it, and may make the decree or decision
which it considers ought to have been made in the first instance or may order a
re-hearing of the matter on such terms and conditions as it thinks appropriate
(Section 94(2)). These powers are
the equivalent of those of other intermediate courts of appeal. The Full Court must have regard to the
evidence given in the proceedings from which the appeal arose. Applications may be made for the
admission of fresh evidence, but this is not done as a matter of course
(Subsection