Appellate Advocacy in the Family Court

A short introduction for those unfamiliar with the nature and processes of appeals in the appellate division of the Family Court:

Nature

The appellate division of the Family Court hears appeals from the Federal Circuit Court’s family jurisdiction, and from the trial division of the Family Court.

• Leave to appeal is required in limited circumstances. First, in relation to interlocutory orders. Second, in relation to Child Support matters, pursuant to the relevant Child Support legislation.
•  All appeals from judges of the Family Court trial division are heard by the Full Court constituted by a bench of three judges.
• Under the Family Law Act, the Chief Justice can determine that an appeal from a Federal Magistrate, now Federal Circuit Court Judge, be heard by a single judge of the appellate division. That is an internal determination, not one made on application by a party. [s 94AAA(3)]

Process

• Chapter 22 of the Family Law Rules outlines the steps to be taken in the appeal process.
• Each state has a Regional Appeals Registrar. It is the Registrar who makes directions and procedural orders. (The Rules provide for review of an Appeals Registrar’s order, by way of a hearing de novo. Note time for filing for review is 14 days not 28.)
• A notice of appeal must be filed within 28 days of the date of the order sought to be appealed. [Rule 22.03] If not filed in 28 days, an application for leave to appeal out of time must be filed. [Note 2, r 22.03 and r 1.14]
• The filing of a notice of appeal does not serve to stay the orders appealed. An application for a stay must be made to the judge who made the order. [Rule 22.11]
• Following the filing of the notice of appeal, a draft appeal index must be filed within 28 days. [Rue 22.13(2)] A procedural hearing will not be held until the draft index is filed. If the index is not filed the appeal is taken to be abandoned. [Rule 22.13(3)] To continue requires an application for reinstatement. [Rule 22.44]
• Upon the filing of a draft index the matter will be listed for a procedural hearing before the Regional Appeals Registrar. The Registrar assists the parties to settle the appeal index, and makes orders about preparation of appeal books, date for filing of books and summaries of argument, and the conduct of the appeal. [Rules 22.17 and 22.26]
• In Full Court matters, appeal books are prepared by the appellant, unless ordered otherwise. [Rule 22.18]
• Appeal books are not required in Single Judge appeals from the Federal Circuit Court. A draft index must still be filed, but the Court will prepare the material for itself.

Procedural matters

• A range of procedural applications may be made in appeals. Such applications must be by way of the Application in an Appeal form, and supporting affidavit. [Rule 22.36] These are most commonly heard and determined by a single judge of the appeal division. Some may be heard by the Appeals Registrar. Applications include:

– Leave to appeal out of time [Rule 1.14]

– Leave to amend grounds of appeal [Rule 22.09]

– Reinstatement (following abandoned or dismissed appeal) [22.44]

– Dismissal for non-compliance or delay [Rule 22.45]

– Summary dismissal [Section 96AA]

– Security for costs (often heard by Full Court) [Rule 19.05]

– Preparation of appeal books [Rule 22.18]

– Review of Regional Appeal Registrar’s order [Rule 22.40]

– Expedition

– Vacate or adjourn hearing date

• Best practice is to seek the consent of the other side to an application before filing and where possible, provide the court with consent orders.
• Applications for Further Evidence: [Rule 22.39] Must be filed no later than 14 days prior to the commencement of the appeal sittings and are heard together with the substantive appeal. These applications are guided by very specific rules and principles which must be borne in mind: CDJ v VAJ (1998) 197 CLR 172.

Justice May and Justice Ainslie-Wallace