Appeals

Introduction

15.53 Appeals from State and Territory courts of summary jurisdiction in family law matters are dealt with by the Family Court except in Western Australia and the Northern Territory where appeals may also be heard by the Family Court of Western Australia and the Northern Territory Supreme Court respectively.^[121] Appeals from first instance decisions in care and protection matters in the States and Territories lie to the district or Supreme Courts except where an appeal lies from a children’s court magistrate to a judge of that court.^[122]

15.54 The proposed extended cross-vesting scheme raises the question of how appellate jurisdiction should be shared by the Family Court and the relevant State and Territory courts. In addition there is the question whether one court should deal with all care and protection appeals.

Appeals in matters involving cross-vested jurisdiction

15.55 The Family Law Council discussed the possibility of splitting appeals in cases with a cross-vested element. It observed that Supreme Courts might hear appeals arising from the care and protection jurisdiction and the Family Court appeals under the Family Law Act. The Council described this as ‘…undesirable, but possibly unavoidable as appeals on child welfare aspects may have to [remain] with the States’.^[123] The Inquiry, however, favours a single court of appeal on all issues dealt with under the proposed cross-vesting arrangements. Having regard to the desirability for national consistency and the developing expertise of the Family Court in child abuse matters, the appellate jurisdiction for all matters with a cross-vested element under the proposed scheme should be conferred on the Family Court alone. The Family Court of Australia supported this proposal.^[124]

15.56 Where matters have been initially heard in a court of summary jurisdiction or by a magistrate in a children’s court, both the care and protection and the family law issues should be dealt with by the Family Court de novo except in the case of Western Australia.^[125] In Western Australia, appeals from magistrates’ decisions in matters with a cross-vested element should also be able to be heard by the Family Court of Western Australia. Where matters with a cross-vested element are heard originally by a judge of a children’s court, appeals should lie to a single judge of the Family Court. These appeals should not be rehearings de novo. In the Family Court, where matters with a cross-vested element are heard by a judge, appeals should go to the Full Court of the Family Court. If a federal magistracy is introduced that deals with children’s matters at first instance,^[126] appeals from decisions of those magistrates involving a cross-vested element should be heard by a judge of the Family Court. These arrangements would require amendment of Part X of the Family Law Act.

A single national court of appeal for care and protection matters

15.57 The more radical step of a full transfer of appellate jurisdiction to the Family Court from all care and protection decisions by State or Territory children’s courts would have the benefit of simplicity and was raised as an option for discussion in IP 18 in March 1996.^[127] Responses to this option were evenly and strongly divided.^[128] Given this response, the Inquiry invited further comment in DRP 3 as to whether appeals should lie to the Family Court from all State and Territory care and protection decisions. Once again support was divided but there was a significant level of approval in the context of the package of reforms suggested. One submission noted that this arrangement would provide ‘…a coherent body of law and jurisprudence, a pressing current lack’.^[129] A 1993 report recommended that all appeals from care and protection decisions should be heard by the Family Court.^[130]

The reasons for that do not involve any criticism of either the County Court or the Supreme Court which have performed these functions since the establishment of Children’s Courts [in Victoria]. It is a recognition of the circumstance that child related matters are an increasing speciality. In that context, it is not the best model for appeals to go to Judges of the State courts who individually are likely to hear less than one of these cases per year and whose normal jurisdiction is different. On the other hand, the Family Court has developed an expertise which calls for the exercise of skills which are more akin to those required in Children’s Court proceedings.^[131]

15.58 It could be argued that the lack of experience of intermediate and superior court judges hearing appeals in care and protection matters may be addressed by directing all care and protection appeals to one judge of the district court, as in NSW. However, this response would not take adequate account of the overlapping jurisdictions of the care and protection and family law systems or of the increasing expertise of the Family Court in determining similar matters in the best interests of children. The Inquiry recommends that, once internal children’s court appeal processes have been exhausted, appeals should lie to the Family Court.

15.59 Appeals from State or Territory magistrates should be heard de novo, although the current procedural arrangement, under which the Family Court may accept as evidence in an appeal any evidence taken or tendered in the original hearing, should continue to apply.^[132] Where there is an internal appeal structure in a children’s court involving review of a magistrate’s decision by a judge, this avenue should be exhausted before appeals are taken to the Family Court. In those cases, appeals should not be rehearings de novo, in recognition of the seniority and specialised skill of the children’s court judges.

Appeals from decisions of courts of summary jurisdiction on family law matters

15.60 The Family Law Act allows appeals from decrees of courts of summary jurisdiction of a State or Territory exercising jurisdiction under the Family Law Act to be made to either the Family Court or to the Supreme Court of the State.^[133] For those purposes, the Supreme Courts are invested with federal family jurisdiction.^[134] However, this may be prevented by proclamation.^[135] Appeals to the Supreme Courts of all States and Territories except the Northern Territory and Western Australia are currently the subject of proclamations.^[136] In the Northern Territory appeals lie to the Supreme Court as well as the Family Court of Australia. Apart from Western Australia, which should retain an avenue of appeal through its State Family Court, all appeals against decisions of State and Territory courts exercising federal family law jurisdiction should also go to the Family Court alone. The Family Court should become the single court of appeal from all family law and care and protection matters.