There are certain orders in respect of which an appeal cannot be brought as of right. A party wishing to appeal from these orders must first apply to the court for leave to file a Notice of Appeal. Significantly, leave to appeal must be obtained in respect of any interlocutory order involving financial or procedural issues.

The Family Law Act 1975 sets out a table, at s 94AA, of all matters in which leave to appeal must be obtained prior to a Notice of Appeal being lodged with the court.

See Leave to appeal.

The appeal process is commenced by the lodgment of a Notice of Appeal. That notice must set out a number of particulars relating to the appeal and the grounds on which the appeal is brought.

The grounds of appeal must set out the basis upon which the appeal is to be heard. There are typically eight (8) grounds of appeal in family law matters, namely:

• the learned trial judge acted upon a wrong principle;

• the learned trial judge took into account irrelevant matters;

• the learned trial judge erred on the facts;

• the learned trial judge failed to take into account a material consideration;

• the learned trial judge’s decision was plainly unreasonable or unjust;

• the learned trial judge was biased;

• the learned trial judge failed to afford a party procedural fairness; and

• the learned trial judge provided inadequate reasons.

The most common grounds of appeal are:

• that the judge has made an error of law in the judgment; or

• has made an error or errors of fact, which have:

The grounds of appeal may be varied after the filing of the Notice of Appeal up to the date fixed for filing of the summary of argument by the appellant: r 22.09 of the Family Law Rules 2004.

See Grounds of appeal.

An appeal is generally run on the evidence that was available at the time of hearing except if the appeal is heard "de novo" (that is, from the beginning as if the original hearing had not occurred).

The court does, however, have the power to permit further evidence, particularly if that evidence was not available at the time of the hearing and after a party has made an application to adduce that evidence at appeal.

See Adducing fresh evidence.

The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision. If an appeal has been filed, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.

See Aldridge v Keaton (Stay Appeal) for a summary of the points that the Full Court must consider in any stay application.

An application for a stay must be filed in the registry in which the order under appeal was made and be heard by the judge or magistrate who made the order under appeal.

See Stays pending appeal.