This brochure gives basic information about appeals to the Federal Circuit and Family Court of Australia (Division 1) from decisions of a Federal Circuit and Family Court of Australia (Division 1) judge, Family Court of Western Australia judge, or by a Federal Circuit and Family Court of Australia (Division 2) judge or a Family Law Magistrate (in Western Australia).
An appeal from the decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) or a Family Law Magistrate (in Western Australia) is heard by a single Judge unless the Chief Justice directs the appeal be heard by a Full Court.
An appeal from the decision of a judge of the Federal Circuit and Family Court of Australia (Division 1) judge or a Family Court of Western Australia judge, is heard by a Full Court.
The brochure should be read with Family Law Practice Direction: Appeals and Chapter 13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 available at www.fcfcoa.gov.au
For information about reviews from decisions made by registrars of the Courts or appeals from State Magistrates / Local Courts call 1300 352 000. If seeking to appeal a State Magistrates’ decision in WA call (08) 9224 8222.
Appeal – a procedure which enables a person to challenge the decision made by a judge.
Appeal books – a collection (in electronic form) of all documents relevant to the appeal.
Appellant – a person who files an appeal.
Child welfare matter – a matter relating to the person with whom a child is to live; or with whom the child is to spend time or communicate; or any other aspect of parental responsibility.
Cross-appeal – a procedure which enables the person responding to an appeal to also challenge the decision made by a judge for a different reason.
Cross-appellant – a person who files a cross-appeal.
Draft index to the appeal book – a list of the documents which were before the primary judge, and which are relevant to the appeal.
Full Court – three judges hearing an appeal together.
List of authorities – a list containing the name and citation of previously decided legal cases.
Leave to appeal – permission required before an appeal can proceed in some cases.
National appeal registry – the registry that supports the appeal work of the Court. Documents for an appeal must be filed with the national appeal registry in the relevant location:
SYDNEY – for matters heard in New South Wales (except Lismore and Albury) and the Australian Capital Territory.
BRISBANE - for matters heard in Queensland, the Northern Territory and Lismore.
MELBOURNE – for matters heard in Victoria, Tasmania, South Australia and Albury.
PERTH for matters heard in Western Australia by a Family Court Judge or Family Law Magistrate.
Notice of Contention – document which a respondent or independent children’s lawyer must file if they contend the order should be affirmed on grounds other than those relied on by the primary judge (Rule 13.08).
Primary judge – the judge (or Family Law Magistrate in Western Australia) who made the orders being appealed.
Reasons for judgment – the reasons given by the primary judge for the orders that are made.
Respondent – the other party to the proceedings.
Single judge – the judge who hears an appeal from the decision of a judge of the Federal Circuit and Family Court (Division 2), or Family Law Magistrate in Western Australia, unless the Chief Justice directs the appeal be heard by a Full Court.
Submitting Notice – document which a respondent may file if they do not oppose the appeal (Rules 13.09 and 2.22).
Summary of Argument – an outline of the argument provided before the hearing of the appeal.
Transcript – the official written record of court proceedings.
Main stages in an appeal
Within 28 days of the orders appealed being made
The appellant files the Notice of Appeal at the correct region of the national appeal registry (attaching a copy of the orders being appealed) and pays the filing fee or applies for a fee exemption.
After an appeal from the decision of a Judge of the Federal Circuit and Family Court of Australia (Division 2) is filed
The appeal is to be heard by a single judge unless the Chief Justice determines the appeal will be heard by a Full Court. (The parties will be notified if the appeal will be heard by a Full Court)
Within 14 days of filing the appeal
The appellant arranges for a copy of the Notice of Appeal to be served on the respondent and all other parties (including any independent children’s lawyer).
Within 14 days of being served with a Notice of Appeal or within 28 days of the order being appealed
The respondent may file a Notice of Appeal endorsed as a cross-appeal and pay the filing fee or make an application for a fee exemption if they also challenge the orders.
If the respondent does not challenge the orders and opposes the appeal, they do not need to file anything yet, except a Notice of Address for Service for service to confirm their details.
Within 28 days of filing the appeal or the date of reasons for judgment
The appellant files a draft index to the appeal book and serves a copy on the other parties. If the draft index is not filed on time, the appeal is deemed to have been abandoned.
Within 28 days being served with a Notice of Appeal
If a respondent or the independent children’s lawyer does not want to cross-appeal but contends the orders should be affirmed for different reasons than the primary judge, they must file a notice of contention.
After the draft index to the appeal books is filed
The appeal is listed for a procedural hearing. The parties to the appeal will be notified of a hearing date by the regional appeal registry. The procedural hearing may be conducted by a judge or a registrar.
The judge or registrar makes orders to prepare the appeal for hearing. This may include orders about the appeal book to be filed and a timetable for filing of documents to be used in the appeal (including summaries of argument and lists of authorities).
Within 14 days after the procedural hearing
If the respondent does not oppose the appeal, they may file a submitting notice.
By the date ordered at the procedural hearing
Appellant files and serves the appeal book and transcript. If the appeal book and transcript are not filed on time, the appeal is deemed to have been abandoned.
After the appeal book and transcript are filed the parties are advised of the date of the appeal hearing.
The appellant files and serves a summary of argument and list of authorities.
The respondent (and any other parties, including independent children’s lawyer) files and serves a summary of argument and list of authorities.
THE APPEAL HEARING
The hearing where each party presents oral arguments to the single judge or Full Court judges relating to the appeal.
What will the single judge or Full Court judges hearing the appeal take into account?
The judge/s will:
- read the Notice of Appeal, the reasons for judgment and the summaries of argument;
- read the documents in the appeal book;
- read the transcript;
- listen to oral argument from both sides.
An appeal is not a rehearing of the original case. The judge/s will therefore not:
- consider anything that was not before the primary judge, except in special circumstances; or
- hear parties or witnesses giving oral evidence.
What does the appellant need to establish?
To succeed in an appeal, the appellant needs to convince the judge/s that the primary judge made a mistake such that the decision should be set aside or varied.
This is usually done by demonstrating that the primary judge:
- applied a wrong principle of law, or
- made a finding of fact on an important issue not supported by the evidence, or
- took into account an irrelevant consideration; or
- did not take into account a relevant consideration; or
- used his or her discretion to arrive at a decision which was clearly wrong.
A finding of fact is, for example:
- a finding that a certain event did or did not occur
- that something was said or not said, or
- that something has a certain value (for example, your house).
A judge used discretion when he or she has to weigh up a number of different factors, all of which are of relevance. To succeed on appeal, it is not enough to show that another judge might have weighed up the relevant factors differently and come to a different result.
- In a financial case there is a margin within which the Court may have a range of decisions open to it; all of which will be legally valid or acceptable.
- In a parenting case matters may be so finely balanced between the parties that the primary judge could decide in favour of either party, without being in error in a legal sense.
If the primary judge accepted the evidence of one party in preference to that of the other party, the appeal judge/s will be reluctant to take a different view because, unlike the primary judge, they do not see and hear the parties or their witnesses giving evidence.
It is not possible to appeal some orders, including:
- Join or remove a party;
- Adjourn or expedite a hearing;
- Vacate a hearing date; or
- Other procedural orders that are made during the course of the proceedings that do not conclude any part of the parties’ justiciable dispute.
Leave to appeal
Leave to appeal is needed to challenge certain orders. The rules about this are complex, but in general terms:
- Leave is not needed to challenge interim orders in relation to a child welfare matter;
- Leave is needed to challenge all other appellable interlocutory orders;
- Leave is needed to challenge orders made about child support.
Outcome of appeal
If the appeal is successful, the judge/s may:
- make a different order to the one made by the primary judge, or
- order another hearing by a judge (usually by a different judge).
If the appeal is found to have no legal merit, it will be dismissed.
It is also possible for the judge/s to find that although the primary judge made some errors, he or she came to the correct conclusion, in which case the appeal will be dismissed.
Before deciding whether to appeal against the primary judge’s decision, it is important to be aware of the costs involved. They include:
- the filing fee (unless an exemption is obtained) - for more information see the fees section at www.fcfcoa.gov.au/fees
- the cost of a transcript (if required). No fee reduction or exemption is available.
- fees for a lawyer if you engage one to represent you.
Depending on the outcome, the judge/s may order a party to pay the costs of other parties.
If the appeal succeeds on a question of law, you may ask the judge/s to recommend to the Attorney-General that a contribution be made towards your 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 $4000.
You should seek legal advice before deciding whether to appeal or to oppose an appeal. As appeals are complex, you will ideally obtain a lawyer to represent you,
Court staff can answer questions about forms and the court process, but cannot give legal advice (see the back page for contact details)
You may be able to obtain legal advice from a:
- legal aid office
- community legal centre, or
- a private lawyer.
When seeking legal advice, you should have a copy of the orders and the reasons for judgment.
What to do and when
1. Preparing your appeal
You prepare your appeal by completing a Notice of Appeal (attaching a copy of the orders being appealed). The notice must be typed or printed clearly and must state:
- If you are applying for leave to appeal, the facts relied on in support of the application.
- Whether the appeal is against all or only part of the orders. If it is against only part of the orders, state which part.
- The grounds on which you claim that the decision is wrong. You should point out briefly but specifically which principle of law the primary judge applied wrongly, and/or which findings of fact are wrong, and/or how the decision is outside the wide range of discretion. It is very important that the grounds of appeal are prepared carefully as they govern the matters the judge/s will consider in deciding the appeal.
- What specific orders you want the judge/s to make if the appeal succeeds (or whether you want a new trial instead).
2. Time limits on appealing
The Notice of Appeal must be filed in the national appeal registry no later than 28 days after the day on which the orders were.
You may seek an extension of time by filing an Application in an appeal and an Affidavit in support attaching your draft Notice of Appeal. These must be filed and served on the other parties or their lawyers (including any independent children’s lawyer).
The application will be heard by a judge or a registrar. Matters that will be taken into account when deciding whether to allow the extension of time will include:
- whether there is a substantial issue to be determined (which will include some consideration of the merits of the proposed appeal);
- the reasons for and length of the delay
- any disadvantage the delay has caused the other party; and
- the overall justice of the case.
3. Filing the appeal
The Notice of Appeal must be filed by email to the relevant location of the national appeal registry. At filing, you must pay the filing fee or obtain an exemption from paying the fee.
Note – the filing fee cannot be refunded if you withdraw or abandon your appeal.
4. Serving the Notice of Appeal on the other party
You must arrange to serve a copy of the Notice of Appeal on each other party to the appeal or their lawyers, including any independent children’s lawyer, within 14 days of filing. Service may be by post or by hand (personal delivery – you cannot serve the papers yourself).
The Court’s Service Kit provides information on service and includes the Affidavit of Service.
The respondent may also appeal if he or she considers that the judge made an error. This is done by filing a Notice of Appeal (endorsed as a ‘cross-appeal’) by email to the relevant location of the national appeal registry. The cross-appeal must be served on the appellant (or their lawyer if they have one) and any other party to the appeal.
The respondent must file the cross-appeal no later than 14 days after service of the Notice of Appeal or within 28 days of the orders being made, whichever is the later.
The time for filing a cross-appeal may also be extended by order of the Court.
At filing, you must pay the filing fee or obtain a fee exemption.
Note – the filing fee cannot be refunded if you withdraw or abandon your cross-appeal.
6. Draft Index to the Appeal Book
Within 28 days of filing the Notice of Appeal (or Notice of Cross-Appeal) you must file and serve a draft index to the appeal book. If reasons for judgment were not given when the orders were made, the time for filing the draft index is extended to 28 days after the issue of the reasons for judgment.
The draft index lists the documents that will be relevant to the appeal. If you fail to file and serve a draft index on time, the appeal will be taken to be abandoned.
Filing an appeal does not stop the order
Filing a Notice of Appeal does not automatically affect the orders made by the judge (except where the order is a divorce order that has not been finalised). 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. You may request an early hearing if necessary.
The application to stay the orders should be filed in the registry of the Court where the primary proceedings were heard, not the national appeal registry. The application will be decided by the primary judge, if available.
If a stay is granted, the primary judge’s orders have no effect until the appeal is finalised or some other order is made in relation to the stay.
The procedural hearing and the appeal book
After the draft index to the appeal book is filed, a date is allocated for a procedural hearing. Procedural hearings are generally conducted by telephone or by video using Microsoft Teams.
At the procedural hearing, orders will be made about:
- the contents of the appeal book to be prepared in electronic form (usually by the appellant);
- the party who will be responsible (usually the appellant) to obtain, file and serve, in electronic form, those parts of the transcript that may be relevant to the appeal,
- the filing of a summary of argument by each party and a list of authorities; and
- (if known) the date for the hearing of the appeal.
Unless otherwise ordered, the appeal book to be relied on at the appeal hearing must include the following:
- the Notice of Appeal
- the order being appealed
- reasons for judgment of the primary judge
- any relevant previous or subsequent order (for example, a stay of the primary judge’s orders)
- the application that was decided by the primary judge
- any response to that application
- relevant affidavits relied on before the primary judge
- any family / expert report received in evidence
- relevant exhibits tendered before the primary judge,
- if the appeal involves a challenge to the exclusion of evidence by the primary judge – the document that is the subject of the challenge; and
- the relevant parts of the transcript of the hearing before the primary judge.
Copies of exhibits are not always included in the appeal book. This is considered at the procedural hearing. All the relevant exhibits will be available at the appeal hearing if a party wishes to refer to them.
The hearing date
The likely sittings or hearing date will be discussed at the procedural hearing (if known), and a date may be allocated if the hearing is before a single Judge. Urgent appeals may be given priority so you should make a submission to the judge or registrar if there is any particular urgency about your case. In some cases, you may be required to file an Application in an Appeal to request an urgent hearing together with an affidavit in support.
Prosecution of the appeal
If you do not obey orders made by the judge or registrar or fail to attend court hearings or appointments, the judge/s or registrar may dismiss your appeal without it being heard. You will be given prior written notice of this and the opportunity to appear before the judge/s or registrar. If your appeal is dismissed, you may be liable to pay the other parties’ costs relating to the appeal.
An appeal will be taken to have been abandoned without the need for any notice to you, if you fail to file the draft index to the appeal book on time. The same applies if you fail to file either the appeal book or transcript on time. You may file an Application in an Appeal to request to re-instate your appeal, together with an affidavit in support.
If you decide to appeal, it is your responsibility to order and pay for the relevant parts of the transcript. Transcripts are available from an independent service provider. The appellant is responsible for purchasing transcripts. The Court cannot reduce the fees.
Transcript is filed and served in electronic form as a separate document to the appeal book.
Notice of material struck out
Before the Appellant’s summary of argument is filed, the parties must file a schedule that identifies any material in the appeal book that was not relied on at trial or was struck out. If there is disagreement, the parties must be able, at the start of the appeal hearing, to direct the Court to relevant pages of the transcript. (Rule 13.20(3))
Summaries of argument and lists of authorities
If ordered to do so, you must file and serve on the other parties a summary of argument and a list of authorities.
Summary of argument
The summary of argument must set out, in relation to each ground of appeal, the points of law or fact to be argued. If an appeal book is being used, references to relevant documents should include a reference to the relevant page number in the appeal book and transcript.
The summary of argument must set out the orders you seek, but only if they differ from the orders sought in the Notice of Appeal (or an Amended Notice of Appeal).
The summary of argument must be legible, using a font size of at least 12 points and 1.5 line spacing. The document must not exceed 15 pages (unless the Court orders otherwise), each paragraph must be numbered consecutively and it must be signed by the person who prepared the summary of argument with details of their name, email address and telephone number to be included in the document.
Where a party intends to challenge any findings of fact, the summary of argument must:
- identify the error (including any failure to make a finding of fact);
- identify the finding that the party contends ought to have been made;
- state concisely why the finding, or failure to make a finding, is wrong; and
- refer to the evidence to be relied upon in support of the argument (including any reference to the relevant page(s) of appeal book and transcript).
Issues not identified in the summary of argument may not be raised at the hearing of the appeal except with leave of the judge/s.
List of authorities
The list of authorities is to be divided into two parts:
- Part 1 must contain only those authorities which will be cited during the appeal.
- Part 2 must contain those authorities which might be called for during the appeal, but which it is not intended to cite.
All references to a reported authority must give the case name, citation and the relevant page/s. Where a judgment is reported in an authorised report that citation should be used. Other recognised series of reports (including Family Law Cases and Family Law Reports) should be used where the judgment is not reported in the authorised reports.
The medium neutral citation of unreported judgments should be provided where available. An unreported judgment should not usually be cited unless it contains a statement of legal principle or a material application of principle which is not found in reported authority.
If a party proposes to read from passages of an unreported judgment, they should provide a copy of the judgment for the judge/s hearing the appeal and each other party by email to the appeal registry prior to the hearing. Copies of unreported decisions downloaded from Austlii should be in PDF/A format where available.
Notice of abandoned grounds
If the Appellant decides to abandon any ground/s of appeal, they should advise the appeal registry and the other parties no later than five (5) days before the appeal hearing. (PD 2.28)
The appeal hearing
The appeal hearing may be conducted in person in Court or via electronic means using Microsoft Teams or video link, as directed by the Court.
The appellant will put their oral argument to the judge/s first. The respondent and any other parties will then respond. The appellant will then have a limited right of reply.
Each party should be able to direct the attention of the judge/s to the relevant pages of documents in the appeal book supporting their argument.
The judge/s will sometimes make their decision immediately after the hearing concludes, but otherwise will reserve their decision to a later time. The judge/s attempt to give their decision within three months of the hearing. You will be notified when the judgment is to be delivered. There is no requirement for you to attend that court event. You will be provided with an electronic copy of the judgment once delivered.
The only evidence that the judge/s will consider is that presented at the hearing before the primary judge, unless permission is given to rely on other material.
If you wish to apply for permission to introduce additional evidence, no later than 14 days before the sittings in which the appeal is listed or the hearing date, you must file and serve on each other party an:
- an Application in an Appeal, and
- an Affidavit in support.
The affidavit should set out the grounds on which you are making the application, briefly but specifically any evidence necessary to establish those grounds and include or provide an outline of the further evidence you want the judge/s to receive. The affidavit should also state why the evidence was not adduced at the hearing.
Stopping an appeal
You can stop your appeal at any time. You do so by filing a Notice of Discontinuance in the national appeal registry. You must serve a copy on the respondent and each other party, including any independent children’s lawyer. If you discontinue your appeal you may be required to pay the costs of the respondent and any other parties relating to the appeal.
Appeals to the High Court
There is no appeal to a Full Court from the decision of a single judge hearing an appeal.
You may apply to the High Court for special leave to appeal decision of a Full Court or a single judge hearing an appeal. If you make any application to the High Court you must also lodge a copy of that application in the relevant location of the national appeal registry. You should check with the High Court registry regarding any time limits which may apply.
National Appeal registries
The Court’s national appeal registry has four locations:
Appeals from New South Wales (except Lismore and Albury) and the Australian Capital Territory
TEL: (02) 8067 2103
97-99 Goulburn Street Sydney NSW 2000
Appeals from Queensland, the Northern Territory and Lismore
TEL: (07) 3052 4006
Cnr North Quay and Tank Street Brisbane QLD 4000
Appeals from Victoria, Tasmania and South Australia and Albury
TEL: (03) 8638 6408
305 William Street Melbourne VIC 3000
Western (Perth - Family Court of Western Australia)
Appeals from the Family Court of Western Australia/Family Law Magistrate
TEL: (08) 9224 8222
150 Terrace Rd Perth WA 6000
If you have any concerns about your safety while attending court, please call 1300 352 000 ((08) 9224 8222 in Western Australia) before your court appointment or hearing. Options for your safety at court will be discussed and arrangements put in place.
Parties 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?
For more information about the FCFCOA:
- go to www.fcfcoa.gov.au
- Live Chat on the website
- call 1300 352 000, or (08) 9224 8222
- visit a family law registry near you.
The Court respects your right to privacy and the security of your information. You can read more about the courts’ commitments and legal obligations in the fact sheet The Court and your privacy. This fact sheet includes details about information protection under the privacy laws and where laws do not apply.
This brochure provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court. The Court cannot provide legal advice.
More information about appeals in the Family Court of Western Australia can be found at Family Court of Western Australia