Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (13 of 2021)
Schedule 1 Amendments relating to the Federal Circuit and Family Court of Australia
Part 1 Amendments
Family Law Act 1975
69 At the end of Part V
Add:
Division 4 - Appeals
47A Appeals from courts of summary jurisdiction
(1) Subject to section 47B, an appeal lies from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under:
(a) this Act; or
(b) the Child Support (Assessment) Act 1989; or
(c) the Child Support (Registration and Collection) Act 1988;
to:
(d) the Federal Circuit and Family Court of Australia (Division 1); or
(e) the Supreme Court of that State or Territory.
(2) Subsection (1) does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.
(3) An appeal under subsection (1) must be instituted within:
(a) in the case of an appeal to the Federal Circuit and Family Court of Australia (Division 1):
(i) the time prescribed by the Federal Circuit and Family Court (Division 1) Rules; or
(ii) such further time as is allowed in accordance with those Rules; and
(b) in any other case:
(i) the time prescribed by the standard Rules of Court; or
(ii) such further time as is allowed in accordance with those Rules.
(4) The Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Supreme Court of each Territory, with respect to matters arising under this Act, in respect of which appeals are instituted under this section.
Note: For jurisdiction in relation to child support legislation, see section 101 of the Child Support (Assessment) Act 1989 and section 106 of the Child Support (Registration and Collection) Act 1988.
(5) The Governor-General may, by Proclamation, fix a date as the date on or after which appeals to the Supreme Court of a specified State or Territory under this section may not be instituted, and such a Proclamation may be expressed to apply only to proceedings of a specified class or specified classes.
(6) The court hearing an appeal under this section:
(a) must proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the court of summary jurisdiction; and
(b) must have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which may be given:
(i) by affidavit; or
(ii) by oral examination before the court; or
(iii) as provided for in Division 2 of Part XI; and
(c) may make such decrees as the court considers appropriate, including a decree affirming, reversing or varying the decree the subject of the appeal.
Decrees made in section 69GA proceedings treated like decrees of courts of summary jurisdiction
(7) This section applies in relation to a decree of a court made in section 69GA proceedings in the same way as this section would apply in relation to a decree of a court of summary jurisdiction.
47B Leave to appeal needed for child support matters
(1) Leave of a single Judge of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under:
(a) the Child Support (Assessment) Act 1989; or
(b) the Child Support (Registration and Collection) Act 1988.
(2) Leave of the Supreme Court of a State or Territory is required to appeal to the Court from a decree of a court of summary jurisdiction of that State or Territory exercising jurisdiction under:
(a) the Child Support (Assessment) Act 1989; or
(b) the Child Support (Registration and Collection) Act 1988.
(3) An application for leave to appeal must be made within:
(a) in the case of leave of the Federal Circuit and Family Court of Australia (Division 1):
(i) the time prescribed by the Federal Circuit and Family Court (Division 1) Rules; or
(ii) such further time as is allowed in accordance with those Rules; and
(b) in any other case:
(i) the time prescribed by the standard Rules of Court; or
(ii) such further time as is allowed in accordance with those Rules.
(4) The applicable Rules of Court may make provision for enabling applications for leave to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.
47C Appeal may be dismissed if no reasonable prospect of success
(1) If:
(a) an appeal has been instituted in a court under this Division; and
(b) it appears to the court that the appeal has no reasonable prospect of success;
the court may, at any time, order that the proceedings on the appeal be dismissed.
(2) This section does not limit any powers that the court has apart from this section.
47D Appeals to High Court may not be brought
(1) An appeal must not be brought directly to the High Court from a decree of the following courts exercising jurisdiction under this Act:
(a) a court of summary jurisdiction of a State or Territory;
(b) a Family Court of a State;
(c) a Supreme Court of a State or Territory constituted by a single Judge.
Note: In relation to the Federal Circuit and Family Court of Australia, see sections 55 and 155 of the Federal Circuit and Family Court of Australia Act 2021.
(2) If, apart from this subsection, subsection (1) is to any extent inconsistent with section 73 of the Constitution, this Act has effect as if the words ", except by special leave of the High Court" were inserted after the words "this Act" in subsection (1).
47E Regulations to be sole source of certain appellate jurisdiction
Despite the provisions of this Division, a court has appellate jurisdiction in relation to a matter arising under regulations made for the purposes of section 111C only as provided by those regulations.