Division 9 of Part XII of the Lukautim Pikinini Act 2015 provides the appeal route from the Family Court.
(1) A person may appeal to the National Court from any conviction, order or adjudication of the Family Court under this Act.
(2) An appeal shall be lodged with the National Court within 40 days from the date of decision.
(3) Where an appeal is made in accordance with this section, the decision of the Family Court is stayed until the final determination of the appeal by the National Court.
(4) The practice and procedure relating to appeals shall be as prescribed.
Subsection (1) — the breadth of the right
| Category | Examples |
|---|---|
| Conviction | Any of the Part XI offences; child labour; operating unlicensed; publishing information identifying a child |
| Order | Protection orders; parenting orders; maintenance orders; appointment or removal of a guardian; confinement expenses |
| Adjudication | A finding under section 97 that a child is, or is not, in need of protection |
Subsection (1) says a person may appeal, not a party. That is wider than the ordinary formula, and it matters in this jurisdiction.
A grandparent or other relative affected by a placement, a caregiver bound by a care plan, or a person against whom a finding was effectively made may all be persons within subsection (1) — consistent with section 101(2), which lets a grandparent, the child, or any other person concerned with the care, welfare or development of the child apply for a parenting order in the first place.
Including the word “adjudication” alongside conviction and order also matters: the section 97 finding is the foundation of everything that follows, and it can be challenged directly.
Subsection (2) — the time limit
Longer than the appeal periods in many jurisdictions, and deliberately so. An appellant may be in a remote area, without a lawyer, and a long way from a National Court registry.
But it runs from the date of decision, not from when reasons are given or the order is drawn up. A person who intends to appeal should act immediately.
The Public Solicitor’s office — established by Constitution section 176 — provides legal aid to those who qualify.
Subsection (3) — the automatic stay
Where an appeal is made in accordance with this section, the decision of the Family Court is stayed until the final determination of the appeal.
In most jurisdictions an appellant must apply for a stay and persuade the court to grant it. Section 115(3) makes it automatic: lodging the appeal stays the decision.
That is a strong protection for an appellant — but it cuts both ways. An appeal against a protection order stays the order, which may leave a child in the situation the order was made to address.
Two things limit the risk. First, the stay operates only where the appeal is made in accordance with this section — that is, lodged within 40 days and in proper form. Second, the emergency machinery in section 46 is untouched: an officer may still take charge of a child whose health or safety is in immediate danger, without any court order at all.
Section 51 gives the Office the care of a removed child until the child is returned or a Court makes an order. Where a protection order is stayed pending appeal, the Office’s position and the Director’s section 52 powers remain the practical basis for the child’s care.
Given section 5(1)(n) — decisions to be made and implemented as expeditiously as possible, having regard to the child’s sense of time — an appeal concerning a child should be pressed to hearing without delay.
Subsection (4) and the National Court’s powers
The practice and procedure relating to appeals shall be as prescribed — that is, by regulations made under section 120, read with the National Court Rules.
The National Court also has its own constitutional powers. Under Constitution section 155(4) it may make such orders as are necessary to do justice, and under section 155(3)(c) it has an inherent power to review any exercise of judicial authority. Where a decision of the Council is in issue — for example a licensing refusal, which section 66(4) makes final and not subject to review except by a court of competent jurisdiction — the route is judicial review in the National Court rather than an appeal under section 115.
A further appeal from the National Court to the Supreme Court lies under the general law. Note that publication restrictions continue to apply on appeal: section 96 makes it an offence to publish information that has the effect of identifying a child who is a witness at, or participant in, a hearing, or who is the subject of a proceeding under this Act.
Sources
- Lukautim Pikinini Act 2015 — ss 5, 46, 51, 52, 66, 96, 97, 99, 101, 115, 120
- Constitution — ss 155(3), 155(4), 176
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.