appeals 101 cpd - notes - holmes list web view15family law appeals 101: everything you wanted to...

Appeals 101: everything you wanted to know but were afraid to ask

Dr Robin Smith

Family law appeals are an under-utilised tool in the family lawyer’s toolbox. Only 371 appeals were filed nationally in the 2015-2016 reporting year – down 5% from the previous year.

Yet, appeals are a vital part of the legal system – ensuring that matters are decided according to law and that judges exercise their discretion appropriately. For clients at the end of the litigation, it may be the only way to seek to remedy an unfavourable judgment. For clients facing with an unfavourable interim result, an appeal may be the way to put their litigation back on a more favourable path. This is particularly so in complex property matters, such as those involving third party interests or issues in the law of equity, or complex parenting matters — such as applications for relocation.

It is understandable, however, that the appeal process is not more regularly utilised. Success in an appeal is always difficult for an appellant. In Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 per Kitto J held at 627:

the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.

A decision will not be set aside by a court of appeal merely because the Appeal Division judges would have come to a different result than the first instance judge. Rather, an appellant must be able to show an error by the judge at first instance which renders the judgment unsafe to such a degree that it should be set aside.

Furthermore, appeals can be expensive. The preparation of a Notice of Appeal, Summary of Argument and the appearance at the appeal itself are all added expenses for litigants who have already gone through litigation (or, in the case of an appeal against interim orders, are still participating in litigation). This expense is likely to explain the fact that despite the fact that only 14% of family law filings occur in the Family Court, 46% of appeals are from Family Court matters. This disparity is almost certainly explained by both the complexity of Family Court matters, and the financial resources available to the parties in the superior court.

However, the available statistics suggest that appeals are in no way a hopeless endeavour. According to the Family Court’s 2016 Annual Report, once a Notice of Appeal is filed, only 55% of appeals proceed to a final hearing, with the balance being either abandoned or withdrawn. But interestingly, for appeals that proceed to

2 Family Law Appeals 101: everything you wanted to know but were afraid to ask

final hearing, whether the appeal is dismissed or allowed is almost even (27% of appeals are allowed, 28% of appeals are dismissed).

All appeals are ‘creatures of statute’. In the Family Law Act, the appellate jurisdiction of the Family Court is created in s 93A. Section 93A provides that the Family Court has jurisdiction in relation to appeals from the Family Courts of Australia and Western Australia acting at first instance, and appeals from the Federal Circuit Court and from the Magistrates Court of Western Australia. Appeals in the family law jurisdiction are on a question of law. Typically, this involves Appeal Division considering the evidence before the first instance judge and the transcript of the hearing.

This paper will introduce the principles and processes required to commence and conduct an appeal in the family law jurisdiction. It will first begin by considering how to commence an appeal, with particular reference to the grounds of appeal and the requirements for leave to appeal. It will also consider the question of stays and the requirements for stay applications.

The second part of this paper then turns to the conduct of an appeal. In particular, it looks at the requirements in the rules for conducting an appeal — including for the preparation of the appeal books and the summaries of argument.

Commencing an AppealAn appeal is commenced by filing a Notice of Appeal. A Notice of Appeal is found on the Family Court website. The formal parts of the Notice require the details of the parties, whether leave is required, the orders which are being appealed, the facts relied upon if leave is required, the grounds of appeal, and the orders sought. The Appeals Registry for the Southern Region is located on level 5 of the Commonwealth Courts Building. Pursuant to the Family Law Rules, a party has 28 days from the date that the orders were made (r 22.03). An extension of time can be sought, but an appellant will need to demonstrate a reason for the delay.An appeal is from the orders or decision, not the reasons for judgment. Thus, the time for lodging a Notice of Appeal will start from the time the order is made – not the time the reasons are received.

When considering commencing an appeal, it is important to note that appeals will take time. In the 2015-2016 period, 32% of appeals were finalised within 3 months. However, this would presumably include many of those that withdrawn or abandoned. 25% of appeals finalised within 3 to 6 months. 20% finalised within 6 to 12 months. 18% within 12 to 24 months. 5% of matters took more than 2 years to finalise.

By way of example, the most recent appeal decision delivered from the Melbourne is Baird & Reynold [2017] FamCAFC 16. This decision was first heard in the Federal Circuit Court, with a judgment being delivered on 23 December 2015. The wife filed a Notice of Appeal within time, and the matter came before Strickland J on 17 May 2016. A judgment was delivered by his Honour on 16 February 2017. The appeal was allowed, and the matter was remitted to the Federal


Circuit Court for rehearing — largely restarting a process that first started with an initiating application filed 14 December 2012.

There is scope for matters to be expedited, and in extreme cases the Full Court will provide ex tempore reasons. However, this cases are the exception, not the rule.

Leave to AppealAs noted above, an appeal is a creature of statute. It is not an automatic right. Section 94AA of the Family Law Act provides that certain cases will require leave before an appeal can be commenced. Those cases which require leave are prescribed in the Family Law Regulations. Regulation 15A prescribes that leave will be required in relation to an interlocutory decree (other than a decree in relation to a child welfare matter), orders related to suppression order or non-publication order (s 102PE), and the dismissing or granting a vexatious litigant’s leave to make an application (ss 102QF and 102QG). A child welfare matter is defined in reg 15A as a live with order, a spend time with order, or any other aspect of parental responsibility.

Whether or not an order is an ‘interlocutory decree’ turns on whether the order ‘finally determines the rights of the parties in the principal case pending between them’ (see, eg, Tadgell & Hahn and Anor [2013] FamCAFC 1).

An application for leave to appeal is contained within the Notice of Appeal. The application for leave is typically heard concurrently with the appeal itself – in that the submissions and material relied upon for the application for leave will be the same as the those for the substantive appeal.

In March of 2016, the Full Court of the Family Court tightened the requirements for leave to appeal in the decision of Medlow & Medlow [2016] FamCAFC 34. Prior to this decision, an appellant needed to demonstrate either (a) an error of principle or (b) a substantial injustice (Rutherford & Rutherford (1991) FLC 92-255). In Medlow, the Full Court considered the appropriateness of this test. The Full Court concluded:

[57] We are of the opinion that, subject to the caveat just discussed, the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. [Original emphasis]

The caveat to this conclusion mentioned above being the general unfettered discretion afforded by s 94AA.

The Full Court adopted this test on four bases. First, that it brings parity to the Appeal Divisions of the Family Court and the Federal Court. Second, there are many cases where a judge has expressed themselves in a way that constitutes an ‘error of principle’ but nevertheless arrived at an appropriate result. Third, it supports the policy consideration that time and resources should not be taken up with appeals on matters which do not finally determine the rights of parties. Finally, the test will keep the focus on the principal issue of whether the decision will be reversed if the appeal succeeds.


Post-Medlow, therefore, an appellant (or more particularly, an applicant for leave to appeal), must be able to demonstrate both:

(a) That the original decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and(b) That substantial injustice would result if leave were refused, supposing the decision to be wrong.

GroundsThe Notice of Appeal must also include the grounds upon which it is said that the first instance judge erred (known as the ‘Grounds of Appeal’).

Under the Family Law Act, judicial officers are given a wide discretion as to what orders to make, whether related to parenting or property. Appeals from discretionary judgments can be made on a number of grounds. The High Court in House v The King (1936) 55 CLR 499 outlined the established principles by which such discretionary judgment can appealed. The High Court held:

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 his 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.

There are 8 typical grounds of appeal in family law matters. These are:(1) The learned trial judge acted upon a wrong principle.(2) The learned trial judge took into account irrelevant matters;(3) The learned trial judge erred on the facts.(4) The learned trial judge failed to take into account a material consideration.(5) The learned trial judge’s decision was plainly unreasonable or unjust;(6) The learned trial judge was biased.(7) The learned trial judge failed to afford a party procedural fairness.(8) The learned trial judge provided inadequate reasons.

A brief description of each of these grounds is provided below.

Wrong PrincipleA decision will be unsafe where a first instance judge acts on a wrong principle. In family law matters, this often occurs where the judge has failed to follow the strict legislative pathway. As the Full Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101 stated in relation to parenting matters:


The legislative pathway to be considered since the amendments in 2006 is convoluted. It has been aptly described by Warnick J in Zabini & Zabini [2010] FamCA 10 as “a dilemma of labyrinthine complexity”.

For example, in the Full Court held in Sayer & Radcliffe and Anor [2012] FamCAFC 209 that:

[48] A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.

In that case, the trial federal magistrate first considered the mother’s proposal and decided that proposal was not in the children’s best interests. The federal magistrate then decided that the status quo would therefore continue and turned to consider what orders for time and communication should be made. The Full Court described the federal magistrate’s process as ‘rather back to front’.

Takes into account extraneous or irrelevant material/fails to take into account material consideration

A decision may also be set aside by an appeals court where a judicial officer takes into account extraneous or irrelevant material, or fails to take into account material considerations. In Storie v Storie (1945) 80 CLR 597, the High Court, cited Blunt v. Blunt (1943) AC 517, where Viscount Simon LC held:

If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court's discretion will have been exercised on wrong or inadequate materials....

Due to the wide scope of the inquiry in family law matters, these grounds are more often framed as matters of weight – the learned trial judge placed too much weight on particular matters, or placed too little weight on other matters.

For example, in Akston & Boyle [2010] FamCAFC 56, the appellant appealed on the basis that the trial federal magistrate had placed insufficient weight on the evidence relating to the nature of child’s relationship with his siblings and his stepfather. The family consultant had stated that the child had a significant attachment to that family unit. The Full Court held that the trial federal magistrate failed to address that point. The trial federal magistrate had also failed (with reference to Smith & Smith (1994) FLC ¶92-488) to ‘consider, weigh and assess the evidence’ on each of the relevant matters, and then ‘indicate’ the relative weight the court attaches to each of those matters, and ‘how all of those matters balance out’.

Mistake of FactIn certain circumstances, a mistake of fact will render a decision unsafe. The High Court in De Winter & De Winter (1979) FLC 90-605 held that:


There are many other authorities, ... that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.

For example, in Mordon & Paul [2014] FamCAFC 222, the trial judge noted that the mother was no longer seeing Ms T, her psychologist and that Ms T was not called to give evidence at trial. Unfortunately, Ms T did give evidence at the final hearing, and the mother was continuing to see her. The High Court held that Ms T was critical witness for the mother, and without being able to establish the weight her Honour gave to the mistake of fact, the appeal was allowed.

Plainly Unreasonable or UnjustIn limited circumstances, an appeals court will set aside a judgment if the decision is ‘plainly wrong’ and exceeds the reasonable exercise of discretion. In CDJ v VAJ (1998) 197 CLR 172, the High Court held:

To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.

It is not sufficient that the court of appeal would have come to a different decision (Gronow v Gronow (1979) 144 CLR 513). Rather, it must be that the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong (Norbis v Norbis (1986) 161 CLR 513).

For example, in Marsh & Marsh [2014] FamCAFC 24, the trial federal magistrate assessed the parties’ contributions, and in particular the parties’ post-separation contributions. His Honour held that such contributions should be assessed as 70% to the husband, and 30% to the wife. However, the Full Court held that this failed to take into consideration the post-separation contributions of the wife in the form of homemaker and parent. The Full Court held that the trial federal magistrate’s decision was ‘plainly wrong’.


BiasThe appeals jurisdiction will also set aside orders where the appellant can demonstrate bias (whether that is actual bias or apprehended bias). In the High Court decision of Johnson v Johnson (2000) 201 CLR 488, it was held that:

... It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

This is a two-step enquiry — First, the court must identify what it is said might lead a judge to decide a case other than on its legal and factual merits. Second, there must be a logical connection between the matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337).

For example, in Hillier & Wootton (2013) FLC ¶93-526, the trial federal magistrate had a discussion with counsel for the respondent wife, whereby the federal magistrate asked whether ‘battered wife syndrome’ was part of the wife’s case. Battered wife syndrome had not previously been raised in the hearing. Counsel for the husband submitted that the fair-minded lay observer would reasonably apprehend that he would not bring an impartial mind to the resolution of the matter where his Honour had ‘given hints’ to the wife as to the conduct of her case. The Full Court held that while this was a borderline case, in the circumstances the trial federal magistrate had not acted reasonable and the test in Johnson was met.

Procedural FairnessA decision may also be set aside by the appellate jurisdiction if the first instance judge failed to afford a party procedural fairness. Typically, this requires a party to be on notice of the orders being sought and being provided with an opportunity to be heard before the orders are made. In Kioa v West (1985) 159 CLR 550, Mason J held:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it...

However, this does not mean that a party must actually be heard – only that they are given the opportunity (Allesch v Maunz (2000) 203 CLR 172). Furthermore, it must be demonstrated that had the party been given the opportunity to be heard, a different outcome may have resulted (Stead v State Government Insurance Commission (1986) 161 CLR 141)

For example, in Keenon & Keenon [2008] FamCAFC 58, an adjournment was granted in the Federal Magistrates Court and an order for costs was made. However, counsel for the wife had not been afforded any opportunity to be heard on the


question of costs. Justice Boland, as a single judge of the Appeal Division, held that the wife had not been afforded procedural fairness and set the cost orders aside.

Inadequate ReasonsA judge’s decision will also be unsafe in circumstances where the reasons for the decision are found to have been inadequate. The Full Court held in Bennett & Bennett (1991) FLC ¶92-191 that:

In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.

For example, in the decision of Harrell & Nesland [2016] FamCAFC 122, the issue of add-backs was considered by the trial judge. The trial judge held:

In my assessment of this pool, I have not made any allowance for the amounts that the applicant seeks as “add-backs”. On my view of the evidence, these amounts were explained sufficiently by the respondent.

However, the trial judge had failed to identify the claims for add-backs that he was rejecting. Furthermore, the claims were connected to an issue of non-disclosure, which was also not addressed by the trial judge. The Full Court held that it was unable to discern why, or how, the case advanced was rejected. In such circumstances, the reasons were found to have been inadequate.

Drafting the GroundsWhere possible, the grounds of appeal should be drawn with specificity and draw the Appeal Division’s attention to the true issues at hand. The Notice of Appeal will be the first document read by the registrar, the other side, and the appellate judges. The grounds of appeal, like a Summary of Argument, should be seen as a piece of written advocacy. In some circumstances, the grounds of appeal will need to be broad and/or vague. For example, where a Notice of Appeal must be filed urgently so that a stay application can also be filed, or where the reasons or transcript are not yet available. Thus, rather than simply:

(1) The learned trial judge erred at law.Consider:

(1) The learned trial judge at first instance erred and her Honour’s discretion miscarried in confining the scope of her enquiry to whether there had been a ‘significant change in circumstances’.

Or perhaps even:(1) The learned trial judge at first instance erred and her Honour’s discretion miscarried in confining the scope of her enquiry to whether there had been a ‘significant change in circumstances’ rather than considering whether the appellant had established a prima facie case of changed circumstances and whether that case is a sufficient change of circumstances to justify embarking on a hearing.


Specified grounds can also assist in demonstrating the merits component of an application for a stay.

That being said, broader grounds of appeal do have their place. The following grounds of appeal should typically be included in every Notice of Appeal (in addition to the specific grounds):

(1) The learned trial judge’s decision is ‘plainly wrong’.(2) The learned trial judge failed to afford the appellant procedural fairness.(3) The learned trial judge failed to provide inadequate reasons.

If the advocate coming into run the appeal has not drawn the Notice of Appeal and the Summary of Argument, it is not unusual for the new counsel to find new arguments or submissions which have not been previously articulated in the material. If the Notice of Appeal has been particularised with very specific grounds (as is recommended above), then the new counsel is ‘stuck’ with what has been pleaded. However, if these broad grounds have been included in the Notice of Appeal, it may provide the new counsel with scope to add new arguments from the bar table (although the Court may be reluctant to hear such new arguments).

Furthermore, it may become apparent through the course of oral argument that a ground that has been particularised as (for example) a failure to take a relevant consideration into account, would have been better articulated as a failure to provide inadequate reasons. If, when it comes time for the appeal, it is determined that these broad grounds are just repeating the more particularised grounds, or cannot be sustained, then they can simply be abandoned.

It is noted that the the Practice Direction states that arguments that have not been articulated in the Summary of Argument will not be permitted without leave. So it may be moving forward that this practice of formulating arguments outside of the Summary of Argument is to be curtailed by the court.

Orders Sought in the AppealIf an appeal is allowed, the court of appeal has the power to either re-exercise the discretion (ie, make new orders to replace the orders being appealed), or alternatively, remit the matter back to the first instance court for rehearing. Whether the Appeal Division can re-exercise the discretion will depend on a range of issues, including the nature of the error made at first instance, whether further evidence will be required, and the amount of time that has passed and the current state of the evidence.

Thus, when considering whether or not to commence an appeal, it is always necessary to consider what orders are being sought – and what the likely outcome at the end of the appeal will be. It is important to advise the client in the case of a remittal, that success on appeal does not mean success overall. A new judge will consider the matter again on the remitter, however there is no guarantee that the new judge will exercise their discretion in a more favourable way. Further, the rehearing on remitter of course add further time to what is likely to have already been lengthy litigation.


StaysIt is important to note that the filing of a Notice of Appeal will not stay the operation of the orders being appealed. A Notice of Appeal merely commences the appeal. To stay (or suspend) the orders the subject to an appeal, an appellant will need to file an application in a case in the original jurisdiction seeking a stay. A stay application is heard by the judge who originally made the orders which are now the subject of the appeal.

The Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 summarised the points to be considered in any stay application. The Full Court held:

Principles relevant to this matter include the following: the onus to establish a proper basis for the stay is on the applicant for the stay.

However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

a person who has obtained a judgment is entitled to the benefit of that judgment;

a person who has obtained a judgment is entitled to presume the judgment is correct;

the mere filing of an appeal is insufficient to grant a stay; the bona fides of the applicant; a stay may be granted on terms that are fair to all parties - this may involve a

court weighing the balance of convenience and the competing rights of the parties;

a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

the desirability of limiting the frequency of any change in a child’s living arrangements;

the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

the best interests of the child the subject of the proceedings are a significant consideration.

The application in a case will need to be supported by an affidavit which addresses the above issues. A solicitor drawing such documents will want to liaise with the barrister conducting the appeal to ensure that arguments in relation to merits (such as any breach of procedural fairness or leave to appeal) are adequately addressed. Further, the solicitor will need to try and obtain an estimate from the appeals registry as to the period of time in which the appeal can be heard.

Conduct of an AppealBefore discussing how appeal proceedings are conducted, it is worth first pausing to identify the nomenclature of the appellate jurisdiction. Informally, the appellate


jurisdiction of the Family Court is referred to as the ‘Full Court’. Indeed, AustLII refers to all decisions from the appellate jurisdiction as Full Court decisions. The medium neutral citation for all appeal judgments is FamCAFC. However, a ‘Full Court’ only relates to one part of the jurisdiction. As noted above, s 93A creates an appellate jurisdiction in the Family Court. The Act refers to this jurisdiction as the Appeal Division. The Appeal Division can be constituted as a Full Court, comprising of 3 judges of the Appeal Division, or by a single judge of the Appeal Division. Under the legislation and the rules, therefore, we should be referring to the Appeal Division, which may be constituted as a Full Court, or as a single judge. This paper has attempted to adopt this terminology.

An appeal from a judge of the Family Court of Australia, the Family Court of Western Australia, and the Supreme Court of a State exercising the Act must be heard by a Full Court (s 94). An appeal from a judge of the Federal Circuit Court or the Magistrates Court of Western Australia will be heard by a Full Court, unless the Chief Justice considers it appropriate to be heard by a single judge of the Appeal Division (s 94AAA).

In December 2016, the Family Court issued a new practice direction in relation to appeals. It applies to all appeals in which a procedural hearing is conducted after 1 January 2017. However, by way of transition, the appeals registrar is also drawing parties’ attention to the practice direction for those matters before the Appeal Division which are still pending, but have had a procedural hearing prior to 1 January 2017.

The practice direction relates to 5 points:(a) The appeal books;(b) The summaries of argument;(c) The List of Authorities;(d) Adducing further evidence on appeal; and(e) Abandoning grounds of appeal.

Draft IndexWithin 28 days of filing the Notice of Appeal (or the receipt of the reasons for judgment), the appellant must file a draft index to the appeal book (r 22.13). If this is not completed, the appeal is deemed abandoned. The index lists the documents which were before the first instance judge which will be relied upon in the appeal. The index must include the orders, applications, affidavits, exhibits and parts of the trial transcript relevant to the grounds of appeal which are necessary to enable the court hearing the appeal to reach its decision.

Procedural HearingOnce the draft has been filed, the appeal will have a procedural hearing (r 22.15). If the appeal is to be heard before a Full Court, the procedural hearing will be conducted by the appeals registrar. If the appeal is to be heard before a single judge of the Appeal Division, that judge will typically conduct a directions hearing. An


appellant and/or their lawyer must attend the procedural hearing (unless otherwise excused). Any respondent and independent children’s lawyer may attend (r 21.16).

At the procedural hearing, the index of documents will be finalised. Orders will be made in relation to which the documents to be included in the appeal books (including what parts of the transcript), the date of filing the appeal books, and summaries of argument, and the conduct of the appeal (including its duration) (r 22.17).

Typically, it is Strickland J who appears in Melbourne as a single judge of the Appeal Division. Justice Strickland typically conducts his own procedural hearings. These hearings are short in duration – with matters listed at half hour intervals.

Further EvidenceIt is open for the appeals division to receive further evidence, however this is in

only in limited circumstances. Section 93A(2) of the Act provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. In CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. The High Court held:

No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.

The key component of this is that the evidence is uncontroversial.An application for further evidence must be supported by an affidavit. Pursuant

to the new Practice Direction, the affidavit must include: briefly but specifically, the facts on which the application relies; the ground(s) of appeal to which the application relates; the evidence that the applicant wants the appeal court to receive or at least the

nature of the further evidence; and the reason why the evidence was not adduced at the hearing.


Appeal BooksThe appellant (or in some instances, the cross-appellant) is responsible for preparing and filing the appeal books (r 22.18). In cases of exceptional hardship, the Court can order the regional registrar or the respondent to prepare the books.

The appeal books have very specific requirements (r 22.20). Each volume of the appeal books must have a title page, and an index stating the documents included and the page number of the document. Each page must be paginated. The documents must be ordered in a specific way. If the appeal books do not meet the requirements, the appeals registrar will not accept them for filing. Crucially, the failure to file the appeal books in accordance with the orders will deem the appeal abandoned (r 22.21). An appellant will then need to apply to have the appeal reinstated.

Since the introduction of the 2017 Practice Direction on the Conduct of Appeals, transcript is now not to be included in the appeal books. Rather, an electronic copy must be provided with the appeal books and served on the other party.

Sitting as a single judge, Strickland J does not typically require the preparation of formal court books. Rather, his Honour will rely upon the individual documents.

Summary of Argument & List of AuthoritiesA Summary of Argument is provided by all parties to an appeal. The Summary of Argument addresses each ground of appeal, providing a statement of the arguments, together with the points of law and the authorities relied upon. As with the Notice of Appeal, the Summary of Argument should be seen as a piece of written advocacy. Like all advocacy, it should be clear, concise and designed to persuade the reader.

To that end, a Summary of Argument should take the Court through each ground methodically with references to both the court documents relied upon and the applicable case law. It should be formatted appropriately and easy to read.

The Rules and the Practice Direction provide for some specific requirements in relation to the Summary of Argument. Under the new Practice Direction, the summary should be no more than 15 pages (this is an increase from 10 pages as contained in the Rules). The font should be no less than size 12 and 1.5 line spacing. All paragraphs should be numbered consecutively. It should also set out the orders sought, if such orders are different from the Notice of Appeal.

Together with the Summary of Argument, each party will also need to provide a List of Authorities. This document provides a list of cases which the party intends to rely upon during the appeal hearing. Since the new Practice Direction, the format of the List of Authorities has changed. Lists of authorities must now include two parts. The first part lists the authorities which will be cited during the appeal. The second part lists the authorities which might be called for during the appeal, but which it is not intended to cite. The Practice Direction now requires that reported authorities include the case name, citation, and relevant page number(s).

Ideally, the Summary of Argument and the List of Authorities should be prepared by the legal practitioner who will be appearing at the appeal. Unless given some leniency by the bench or formal leave to amend, the appeal counsel typically will be confined to the Summary of Argument. It is often difficult for a new


advocate to pick up another barrister’s previous argument and argue it with the same nuances that were originally imagined. Further, while researching and writing the Summary of Argument, counsel will be able to gain insight into the matter as a whole, such as to better assist the Court at the final hearing of the appeal, and advance the client’s case.

Appeal HearingAn appeal hearing will run by way of submissions. Different to many hearings, however, is that the bench will have had the benefit of the parties’ summaries of argument. The purpose of the hearing, therefore, is to expand upon those summaries of argument. For the appellant, it is an opportunity to highlight, articulate and clarify their own Summary of Argument, and to respond to the respondent’s Summary of Argument (which was filed subsequent to their own). For the respondent, it is also an opportunity to highlight, articulate and clarify their own Summary of Argument, and to respond to the appellant’s oral submissions.

Strictly speaking, there should be no surprises at an appeal, as all matters will have been previously articulated in the Summary of Argument. Although, as noted above, broad appeal grounds and a lenient bench may mean that counsel will be able to depart from their Summary of Argument to some degree.

David Ross QC in Advocacy (2007) suggests that there are good reasons why counsel who appeared at the first instance hearing should not appear at the appeal. First, Ross suggests that it is important to have a fresh set of eyes for the appeal. In particular, an appeals counsel will be able to read the transcript and the material without the ‘baggage’ of having lived through the original hearing. Appeals counsel will therefore read the transcript in the same manner as the appeals judges.

Second, Ross suggests that the trial counsel may have made forensic decisions during the trial which on appeal may be difficult or embarrassing to explain. A fresh barrister will be able to avoid such embarrassment, focussing on the grounds pleaded and provide a neutral assessment of the conduct at first instance.

Third, Ross points out that appellate work of itself is a specialist area of advocacy. Those who are expert trial lawyers do not necessarily make great appellate lawyers — or perhaps more particularly do not necessarily want to undertake the work.

CostsFinally, it is worth discussing costs in appeals. As in all family law matters, s 117 of the Family Law Act governs costs. However, costs are typically dealt with slightly differently to cost applications at first instance.

In the event that an appellant is successful in their appeal, appellants can seek either a cost certificate, or that the respondent pay the appellant’s costs. Where the appeal is allowed, a respondent can also seek a cost certificate. Cost certificates are issued pursuant to the Federal Proceedings (Costs) Act 1981. Pursuant to this act, where an appeal is successful, cost certificates can be issued providing for the Commonwealth to pay for the costs of the party (on a party/party basis).


When the appeal is dismissed, a respondent can seek costs against the appellant. Typically, as the appellant has been ‘wholly unsuccessful’, the court of appeal will order costs against the appellant.

Submissions as to costs are typically heard at the end of the appeal hearing, rather than having the parties brought back once the judgment has been delivered.

Concluding RemarksAs stated in the introduction of this paper, appeals are under-utilised in the family law jurisdiction. However, they are an excellent vehicle to advance a client’s case, particularly where an error of law can be readily identified on the face of the judgment. It is often the case that an appellate lawyer will be able to read the reasons for judgment of a trial division judge and the relevant court documents and provide advice as to the merits of an appeal within a relatively short period of time.

When advising clients in relation to appeals, it is important to note their limitations. Appeals are by their nature difficult to win. As noted above, courts of appeal start from the presumption that the first instance judgment is correct. The appellant must rebut that presumption based on strict principles. Appeals are not a ‘second bite at the cherry’. Typically, there is no opportunity for fresh evidence to be heard, but rather are strictly in relation to questions of law. For clients, they may feel removed from the appeal process, where technical legal arguments prevail over issues of fact.

Furthermore, it is important to note the wait times in relation to the Appeal Division. As noted above, is it not unlikely for an appeal to take 12 months from the date of filing. This is particularly important to take into account when appealing from an interim decision — it may be that the final hearing of the substantive matter will be heard faster than (or at a similar time to) the appeal.

As in all matters, it is worth engaging with counsel at the earliest possible time in relation to appeals. From assistance with drawing the Notice of Appeal onwards, appeals in particular are assisted by consistent counsel who can maintain the theory and structure of the argument to be run at the appeal from the outset.

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