Annual report [1997-98] - Family Court of Australia

The Family Court of Australia – annual report 1997-98
Appeal division
The Full Court of the Family Court of Australia is constituted by three or more judges of
the Court, the majority of whom are required to be members of the Appeal Division
(Family Law Act sections 4 and 21A). As a consequence of the Family Law (Amendment)
Act 1983 and the Family Court of Australia (Additional Jurisdiction and Exercise of
Powers) Act 1988, the Appeal Division of the Court is constituted by eight judges. They
are the Chief Justice, the Deputy Chief Justice and such other judges (not exceeding six)
as are assigned to that Division.
At 30 June 1998, the judges assigned to the Appeal Division were:
Justice Ellis
Justice Fogarty AM
Justice Baker
Justice Lindenmayer
Justice Finn
Justice Kay
On average, each of the appeal judges sat on appeals for approximately 12 weeks during
the year. When they are not sitting on appeals, appeal judges are available to sit at first
instance.
Appeals
The right of appeal and the powers of the Full Court on appeal are set out in Part X of the
Family Law Act. An appeal lies to the Full Court from a decree of the Family Court, constituted
otherwise than as a Full Court, exercising jurisdiction under the Family Law Actor
under any other law except proceedings transferred from the Federal Court to the Family
Court under the Family Court of Australia (Additional Jurisdiction and Exercise of
Powers) Act 1988. Those appeals are heard by the Full Court of the Federal Court of
Australia.
An appeal also lies to the Full Court of the Family Court from a decree of the Family Court
of a State (that is, the Family Court of Western Australia) or the Supreme Court of a State
or a Territory constituted by a single judge exercising jurisdiction under the Family Law
Act or in proceedings continued in accordance with s9 of that Act.
Under s94(1)(AA) an appeal lies to the Full Court from the decision of a judge exercising
jurisdiction under the Family Law Act rejecting an application that he or she should disqualify
himself or herself from further hearing the matter. That provision was enacted in
amendments to the Family Law Act in 1987. Prior to that time those matters usually went
directly to the High Court by way of prerogative writ: as to which see the observations of
the High Court in: R v Cook; Ex parte Twigg (1980) 147 CLR 1; Re Wilkie; Ex parte
Johnston(1980) 55 ALJR 191 at 192; and Re Family Court of Australia; Ex parte Herbert
(1992) FLC 92-280.
Section 94(2) empowers the Full Court on the hearing of the appeal to make such decree
or decision as in the opinion of the Court ought to have been made at first instance and by
s93A(2) the Court may admit further evidence on the hearing of the appeal.
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