3. court operation

3.10 Appeals - General

A party has the right to appeal to a higher court in certain circumstances if he or she is dissatisfied with the decision of either Division of the Children's Court. Very few appeals reach the Court of Appeal and to date no appeals have reached the High Court.

Using the word "appeal" in a loose sense, there are four different types of appeal (see table below) from a decision of the Children's Court and there are three different paths (see chart below).

APPEAL TYPE		NOTES
1	Appeal on a question of law [appeal stricto sensu]	A right of appeal to the Supreme Court on a question of law from a final order of the Children's Court (other than in a committal proceeding) is granted and regulated by s.329 (Family Division) and s.430P (Criminal Division) of the CYFA. This is an appeal “in the strict sense”. It is not a re-hearing. The appellant must show that the trial judge/magistrate has made an error of law, some examples of which are detailed below.
2	IAO appeal	A right of appeal to the Supreme Court pursuant to s.271 of the CYFA on a decision to make or refuse to make an interim accommodation order in the Family Division.
3	Order 56 judicial review	Order 56.01(1) of Supreme Court Rules provides that the jurisdiction of the Supreme Court to grant any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto shall be exercised only by way of judgment or order (including interlocutory order) and in a proceeding commenced in accordance with these Rules.
4	Hearing de novo	A right of appeal by certain persons against certain orders of the Children’s Court is granted and regulated by ss.328-330 (Family Division) and ss.424-430O (Criminal Division) of the CYFA. The appellant need show no error by the trial judge/magistrate. An appeal from a decision of the President is heard by a single judge in the Trial Division of the Supreme Court. An appeal from a decision of a Magistrate is heard in the County Court. The appeal proceeds by way of a re-hearing, not by a determination of whether the orders made by the Children's Court should or should not have been made [see s.328(6) (Family Division) and ss.426(1) & 429(1) (Criminal Division)]. For an analysis of the nature of appeals by way of re-hearing and a discussion of the procedure to be followed on such appeals, see: for Family Division appeals: Mr & Mrs X v Secretary to DOHS [2003] VSC 140 at [51]-[64] per Gillard J; for Criminal Division appeals: Neill v County Court of Victoria & Anor. [2003] VSC 328 at [12]-[14] per Redlich J; H v R & Ors [2008] VSC 369 at [9]-[10] per Forrest J citing Humphries v Poljak (1992) 2 VR 129, 139 per Crockett & Southwell JJ.

Examples of appealable errors of law are-

• 
  application of a wrong legal principle;
  
• 
  misapplication of a legal principle;
  
• 
  a major error in relation to the facts in the case which has significantly affected the outcome and which is sufficiently gross to be considered an error of law;
  
• 
  an outcome outside the range of orders reasonably open to the trial judge/magistrate on the evidence before him or her;
  
• 
  a failure, in certain circumstances, to provide reasons for the decision which leave the appeal court unable to determine by what process the result was reached.
  

Section 430Q of the CYFA provides that if a person appeals under s.430P to the Supreme Court on a question of law, that person abandons finally and conclusively any right under the CYFA or any other Act to appeal to the County Court or the Trial Division of the Supreme Court in relation to that proceeding.

• 
  traced the legislative history of the former s.424(8); and
  
• 
  held that the section was of no operative effect because it was premised upon the Children’s Court having a particular sentencing power, namely a power to impose an aggregate period of detention, which it had under s.26(1)(f)(ii) of the repealed Children’s Court Act 1973 (Vic) but which it no longer had under the CYPA or under the CYFA.
  

3.11 Case stated

Under s.533 of the CYFA the Children’s Court has power, with the consent of the President and in both the Family Division and the Criminal Division, to “state a case”, that is to reserve a question of law for determination by the Supreme Court. The section provides:

(1) If a question of law arises in a proceeding, the Court, of its own motion or on the application of any party, may, with the consent of the President, reserve the question in the form of a special case stated for the opinion of the Supreme Court.

(2) If a question of law has been reserved for the opinion of the Supreme Court, the Children’s Court cannot-

(a) finally determine the matter until the opinion of the Supreme Court has been given; or

(b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question of law.