An appeal lies against final decisions made by a judge of the Family Court or Federal Circuit Court of Australia. This applies in all cases except that an appeal does not lie from a divorce order after the order has taken effect: s 93 of the Family Law Act 1975. In Western Australia an appeal lies against final decisions made by a judicial officers of the Family Court of Western Australia. Practitioners in Western Australia should first consult “Appeals in Western Australia” for the practice and procedure of appeals as it applies in that state.

Appeals must be lodged within the time prescribed by the relevant rule: s 94(1A) of the Family Law Act 1975. In most cases this is 28 days: r 22.03 of the Family Law Rules 2004. The appeal period may be extended by an application for leave in which to extend that period, but practitioners should be aware that the appeal period will not be extended without sufficient reason.

The Notice of Appeal must set out particulars of the court and judicial officer who made the relevant orders, the date of those orders, the grounds of appeal and the orders sought in place of those made in the original orders.

Once an appeal is lodged, it is usual that the appeal registry will issue a series of directions relating to the conduct of the appeal. The appeal will have a different case number than the original proceedings and will treated as separate and distinct proceedings with its own procedural orders and directions. Care must be taken that the appellant strictly complies with all directions and timetables that have been given. Failure to comply with those directions and timetables may see the appeal “abandoned” and a costs order awarded in favour of the respondent(s): r 22.21 of the Family Law Rules 2004.

There are many types of appeals that may be appropriate and care must be given to ensure the appropriate rules are followed.

The first step in respect of an appeal is, therefore, to consider the type of appeal you need and then to identify, and to comply with, the rules relating to that type of appeal.

The types of appeals are:

• an appeal from a court of summary jurisdiction;

• an appeal from the Federal Circuit Court (excluding Western Australia);

• an appeal to the Full Court of the Family Court;

• an appeal from interlocutory decrees and orders;

• stated cases; and

• additionally in Western Australia:

Note: In Western Australia, there is a significant difference to the appeals process as compared to the rest of Australia. This is due to the jurisdictional issues arising from the absence of a deferral of power to the Commonwealth for de facto parties and children born outside of marriage and because of the different court structures which apply. Practitioners in Western Australia should first consult Appeals in Western Australia to determine the application of other guidance notes in this subtopic to family law proceedings in Western Australia. Reference in this guidance note to “Family Court” refers to the Family Court of Australia. For WA practitioners, reference to the Family Court of Western Australia will be stated as such to distinguish between the courts.

An appeal from a court of summary jurisdiction that is a local court in a State or Territory is an appeal to a single judge of the Family Court. This appeal is a hearing “de novo”; that is, the matter commences from the beginning and is determined again by a judge of the Family Court having regard to all evidence previously available and all evidence available at the date of the rehearing in the Family Court.

Since it is a hearing de novo, there is no requirement to show that the local court magistrate erred either in fact or in law. It is the role of the Family Court judge on appeal to determine the order that he/she thinks is appropriate, based on the evidence presented before him/her at the time of the hearing of the appeal.

See Appeal from a court of summary jurisdiction.

An appeal from the Federal Circuit Court is an appeal to the Family Court.

An appeal to the Family Court is instituted by the lodgment of a Notice of Appeal. A Notice of Appeal should be lodged with the appeals registry of the Family Court. The appeals registry is generally situated in the Family Court Registry in the capital city of each state of Australia and correspondence is generally addressed to the Regional Appeals Registrar. A Notice of Appeal can be lodged by fax provided arrangements are made with the appeals registry for the payment of the applicable filing fee (refer to the website of the Court for up to date fees).

When a Notice of Appeal is lodged, the Chief Justice must decide whether it is appropriate for the jurisdiction of the Full Court to be exercised by a single judge or by a full bench of the Family Court, consisting of three or more judges. Usually, an appeal from a Federal Circuit Court judge’s decision is heard by a single judge of the Family Court. There is no right of appeal or review against the decision of the Chief Justice as to the way in which the appeal will be heard.

An appeal from a decision of a Federal Circuit Court judge must be lodged within 28 days of the order from which an appeal is lodged. Once a Notice of Appeal has been filed, the appeals registry will make directions as to the running of the appeal, including the preparation of appeal books and the filing of a summary of argument and list of authorities: r 22.23 of the Family Law Rules 2004.

See Appeal from the Federal Circuit Court.

Where the decision of the court appealed from was not a final decision, then leave to file an appeal may be required before an appeal can progress: s 94AA(1) of the Family Law Act 1975. Regulation 15A(1) of the Family Law Regulations 1984 confirms that an interlocutory decree, other than a decree in relation to a child welfare matter, is a decision in respect of which leave to appeal is required before the appeal can be instituted. An order which does not finally determine the rights of the parties in the principal case is an interlocutory decree: see Tadgell v Hahn.

See Appeal from the Federal Circuit Court.

See also Leave to appeal.

An appeal to the Full Court of the Family Court lies against a decision made by a single judge of the Family Court: r 22.14 of the Family Law Rules 2004.

An appeal is instituted by the lodgment of a Notice of Appeal. The Notice of Appeal must be lodged within 28 days of the date of the order appealed from. Once a Notice of Appeal has been filed, the appeals registrar in chambers will make directions as to the running of the appeal, including the preparation of appeal books and the filing of a summary of argument and list of authorities.

Failure to comply with directions may have the appeal abandoned and a costs order awarded against the appellant.

See Appeal to the Full Court of the Family Court.

A stated case is a case under the Family Law Act 1975, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 in relation to which the court and a party want a Full Court to determine a question of law arising in a case: r 22.46 of the Family Law Rules.

In a stated case, one of the parties asks the presiding judge to refer an issue of law to the Full Court for a ruling on that issue of law prior to the finalisation of the proceedings before the trial judge. The purpose of seeking such an order is to avoid the trial judge from making an error at law which would thereby necessitate an appeal to the Full Court. The presiding judge must agree to state the case. In some cases, the judge is the one who proposes that the case be stated but the application itself must be made by at least one of the parties.

See Stated cases.