Family Law: Appeals

What is an appeal?

An appeal is a procedure which enables a person (usually a party to legal proceedings) to request the matter be reviewed by a higher authority.

In an appeal, you ask the appeal court to set aside a decision made by a Federal Circuit and Family Court of Australia judge. An appeal is not a rehearing of the original dispute. Therefore, for your appeal to succeed you must convince the appeal court that the original judge (known as the primary judge or the trial judge) made an error.

The appeal process in family law matters

Notice of Appeal must be filed in the National Appeal Registry within 28 days of an order made by the primary judge. The appellant must pay a filing fee. 

Go to the Fees section of this website for more information.

Appeals are listed for hearing before either a single judge of the Federal Circuit and Family Court of Australia (the Court) (Division 1) or a Full Court (being three judges) of the Court (Division 1).

Decisions from a judge of the Court (Division 1) must be heard by a Full Court. Decisions from a judge of the Court (Division 2) will usually be heard by a single judge. The Chief Justice may however, direct that such an appeal be heard by a Full Court.

For more information about the appeals procedures in the Court, see:

Filing an appeal does not stop the order

Filing a Notice of Appeal does not automatically affect the orders made by the judicial officer (except where the order is a divorce order). This means that both you and the other party must obey the orders, even if you have filed an appeal.

If you want to stop the operation of the orders until your appeal is decided, you must file an Application in a Proceeding to stay the orders and an Affidavit. That application can only be filed after the Notice of Appeal has been filed. Applications seeking a stay of orders must be filed in the first instance registry in which the order under appeal was made.

Serving the Notice of Appeal

You must serve the Notice of Appeal on the respondent and all other parties to the proceedings, including any Independent Children’s Lawyer, within 14 days. Service may be conducted by:

  • post (by you or someone acting for you), or
  • hand (personal delivery – you cannot serve the papers yourself).

The Court’s Service Kit provides information on service and includes the Affidavit of Service that will be given to you when you file the Notice of Appeal. You can follow the instructions in the kit or arrange for service to be conducted by a process server for a fee.

The appellant arranges for a copy of the Notice of Appeal to be served on the respondent and all other parties to the proceedings, including any independent children’s lawyer.

Fees

Before deciding whether to appeal against the primary judge’s decision, it is important to be aware of the costs involved. They include:

  • a filing fee (in some cases a reduced fee may be sought for a divorce application, or decree of nullity, or in respect of other fees, an exemption if you hold certain government concession cards or you can demonstrate financial hardship). For more information see the fees section, and
  • the cost of a transcript of the proceedings before the judicial officer. Each appellant buys transcripts at their own cost. Transcripts are provided by an independent service provider and there is no fee reduction available for this charge.

Legal costs

If your appeal is unsuccessful, it is likely that the Court will order you to pay some or all of the other costs of all other parties to the appeal.

If your appeal is dismissed, it is likely that the other parties will apply to the judge for an order that you pay their costs associated with your appeal. It is common for a costs order to be made against the appellant in those circumstances. If your appeal is successful, you may seek an order that the respondent to the appeal pay your legal costs (if any) and expenses. Alternatively, if the appeal succeeds on a question of law, you may ask the judge to recommend to the Attorney-General that a contribution be made towards those costs from a special fund. The Court may do this by granting a ‘costs certificate’. The most you can be paid from the fund is $4,000.

Do you need a lawyer to appeal?

You will almost certainly need independent legal advice. Even if you propose to conduct an appeal yourself, it is important to obtain legal advice on whether you have valid grounds to appeal.

An appeal will only be successful if the judge has not applied the law correctly. Therefore, in order to be successful you must be able to convince the appeal court of how the law should have been interpreted. This will require you to develop an argument that may be quite technical and complex.

Only a lawyer can give you independent, expert legal advice.

Lawyers are trained to interpret the law and apply it to individual cases. Lawyers also know areas of law, its practices and procedures. A lawyer will:

  • define whether you have a legal issue suitable for consideration on appeal
  • provide practical options available to you, and
  • explain the costs involved in appeal litigation. 

For these reasons, the Court encourages you to obtain legal advice before starting court action. Legal advice can be obtained from:

  • legal aid offices
  • community legal centres
  • private law firms – contact the law society or institute in your state or territory.

For more information, see Legal Help.

National Appeal Registries

The Court’s National Appeal Registry has four locations.

  • Brisbane (appeals from Queensland, the Northern Territory and Lismore)
  • Sydney (appeals from New South Wales (except Lismore) and the Australian Capital Territory)
  • Melbourne (appeals from Victoria, Tasmania and South Australia), and
  • Perth (appeals from the Family Court of Western Australia).

Personal safety

If you have any concerns about your safety while attending court, please call

1300 352 000 before your court appointment or hearing. Options for your safety at court will be discussed and arrangements put in place. By law people must inform a court if there is an existing or pending family violence order involving themselves or their children. More detail is in the brochure Do you have fears for your safety when attending court?

Related information

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