No Rules in the Supreme Court of WA for appeals from non-federal Orders of Family Court of WA Judges

No rules have been promulgated by the Supreme Court of Western Australia in respect of appeals from non-federal decisions of Judges of the Family Court of Western Australia.  This was held by way of unanimous decision of the Full Court of the Supreme Court of Western Australia Court of Appeal (“Court of Appeal”) in the decision of T P Engineering Pty Ltd v JM [2015] WASCA 181 (“T P Engineering”).

If no rules have been promulgated, what, if any, are the procedural requirements currently in place in respect of appeals from the Family Court of WA to the Court of Appeal? In this article our Associate, Dianne Caruso attempts to navigate the appellate pathway and she discusses some of the anomalies that may exist in light of the decision of T P Engineering.

The Judges of the Family Court of Western Australia exercise both federal and non-federal jurisdiction.  Unlike other States, Western Australia has not referred its powers to the Commonwealth in respect of family law matters for people in de facto relationships and in respect of ex-nuptial children.  These areas are largely covered by the Family Court Act 1997 (WA) (“the Act”).

Pursuant to section 211(3) of the Act, the appellate pathway from a decision of a Judge of the Family Court of WA exercising the non-federal jurisdiction of the Court, is to the Court of Appeal.  Any appeals made under section 211(3) of the Act “are to be made in the manner and within the time prescribed by the Rules of the Supreme Court” pursuant to section 211(5) of the Act.

The rules currently in force in respect of the Supreme Court of Western Australia and the Court of Appeal, are the Rules of the Supreme Court 1971 (WA) and the Supreme Court (Court of Appeal) Rules 2005 (WA).

The Full Court of the Court of Appeal unanimously held in the decision of T P Engineering that no rules have been promulgated by the Supreme Court of Western Australia in respect of appeals made pursuant to sub-sections 211(3) and (5) of the Act.  The Full Court stated at paragraph 51:

51           By s 211(5), appeals under s 211(3) to the Court of Appeal are to be made in the manner and within the time prescribed by the Rules of the Supreme Court 1971 (WA). No rules in that respect have been promulgated by the Supreme Court.

The decision does not make specific reference to the Supreme Court (Court of Appeal) Rules 2005 (WA).  If the Supreme Court (Court of Appeal) Rules 2005 (WA) were to apply, the time limit, for example, within which to commence an appeal, would be 21 days by reason of the following:

1. Sub-rule 26(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that the time within which to commence an “interlocutory civil appeal” must be within 14 days of the decision being appealed.
2. Sub-rule 26(2) provides that, unless another written law provides otherwise, “any other appeal” to the Court of Appeal must be commenced within 21 days of the date of the decision being appealed.
3. Rule 3 of the Supreme Court (Court of Appeal) Rules 2005 (WA) defines an “interlocutory civil appeal” to mean an appeal from an interlocutory decision made in civil proceedings in the General Division by a judge or master.
4. Consequently, if the Supreme Court (Court of Appeal) Rules 2005 (WA) applied, an appeal from a decision of a Judge of the Family Court of Western Australia would need to be commenced within 21 days. This is regardless of whether it is an interlocutory or final decision being appealed.

Despite this, the decision of T P Engineering expressly provides that no rules have been promulgated by the Supreme Court of Western Australia in respect of appeals arising under section 211(3) of the Act.  Consequently, the question arises whether there are any rules in place governing how, and when, to commence appeals from non-federal decisions of Judges of the Family Court of WA.  Is there no time limit applicable within which to commence an appeal of this nature?

Notably, it was also unanimously held in T P Engineering that leave to appeal is not required from a decision of a Judge of the Family Court of WA regardless of whether that decision is final or interlocutory.  The Full Court stated at paragraph 52:

52           Nothing in s 211 or elsewhere in pt 7 of the Family Court Act conditions this court’s appellate jurisdiction upon the grant of leave to appeal in respect of any particular categories of decision. It might well be thought surprising, and undesirable, that an appeal lies as of right to this court from a procedural interlocutory decision of the Family Court.  However, that is the effect of the relevant statutory provisions.

The complexities and anomalies that arise when navigating the appellate pathway from non-federal decisions of Family Court of WA Judges to the Court of Appeal, raises the question whether it is in the public interest for Western Australia to refer its powers to the Commonwealth in respect of family law matters for people in de facto relationships and in respect of ex-nuptial children.  It is important to note that this question is distinct from the question of whether or not Western Australia should retain its own State Family Court.

Dianne Caruso I Associate

E: dianne.caruso@kimwilson.com.au