Bainbridge Legal
Appealing Family Law Court Orders 1300 148 110

Notice of appeal

An Appeal is commenced by filing a Notice of Appeal. This must be done within 28 days of the making of the orders, which are being appealed. If more than 28 days has passed since orders have been made, it will be necessary to file an Application in an Appeal (seeking an extension of time) with a supporting affidavit. An appellant must set out in the Notice of Appeal, the asserted grounds of appeal. That is, the precise legal, factual or discretionary error or errors must be identified. A bare complaint is insufficient. Some examples of errors asserted by appellants include:

• • The appellant being denied natural justice
• • The trial judge failing to accord the appellant procedural fairness
• • The trial judge failing to take material considerations into account when making a decision
• • The trial judge allowing extraneous or irrelevant materials to guide their decision
• • The trial judge acting on an erroneous principle
• • The trial judge acting in a way that was biased
• • The trial judge giving inadequate reasons for their decision

Stay of Orders

The filing of a Notice of Appeal does not stay the operation of the orders of the primary judge. An Application in a Proceeding seeking a stay of the order or orders must be filed together with an affidavit setting out the facts relied upon in the stay application. This application is filed in the lower court.

Service (Rule 13.05 Federal Circuit and Family Court Rules)

A copy of the Notice of Appeal must be served on each party to the appeal, by ordinary service, within 14 days after it is filed.

Draft Index to the Appeal Book (Rule 13.14 Federal Circuit and Family Court Rules)

Within 28 days of either the filing of the Notice of Appeal or the date when reasons for judgment have been issued, the Appellant must file a Draft Index to the Appeal Book. The draft index includes a list of all the documents put into evidence at the hearing including orders, reasons for judgment, applications, responses, affidavits, family or expert report received in evidence, transcript and exhibits. These documents will enable the Appellant Court to reach a determination.

Procedural Hearing

After the Appellant files the Draft Index to the Appeal Book, a court date will be fixed for a procedural hearing as soon as practicable before an Appeal Judicial Registrar/Judicial Registrar/Judge of the Federal Circuit and Family Court of Australia (Division 1). On this occasion, the Court will make orders in relation to the future conduct of the appeal including:

• • The documents to be included in the Appeal Book
• • The part or parts of the transcript of the hearing relevant to the appea
• • The preparation of the appeal book and the format in which it is prepared
• • The date by which the appeal book must be filed and served
• • The dates by which the transcript, summaries of argument, lists of authorities and costs schedules must be filed and served
• • The conduct of the appeal (including the likely duration of the appeal)
• • Any other matter that the Registrar or Judge considers necessary

Summary of Argument and List of Authorities (Rule 13.23 Federal Circuit and Family Court Rules)

Each party must file and serve a Summary of Argument and a List of Authorities to be relied upon. For the appellant, these documents must be attended to at least 28 days before the first day of appeal hearing. In the case of the respondent and Independent Children’s Lawyer (where applicable), the Summary of Argument and List of Authorities must be filed and served at least 7 days prior to the first day of the appeal hearing. A Summary of Argument must:

• • Set out each ground of Appeal, with a statement of the arguments setting out the points of law or fact and authorities relied upon for each ground of appeal
• • Set out the Orders sought (if they differ from the orders sought in the Notice of Appeal or any Amended Notice of Appeal)
• • Not exceed 15 pages unless leave has been given

If a party intends to challenge any findings of fact in the appeal, the Summary of Argument must:

• • Identify the error (including any failure to make a finding of fact)
• • Identify the finding identify the finding that the party contends should have been made
• • state concisely why the finding, or failure to make a finding, is erroneous
• • refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).

Importantly, any issues not identified in the Summary of Argument may not be advanced at the hearing of the appeal, unless the appeal court grants leave

Adducing Further Evidence on Appeal (Rule 13.39)

Where a party to an appeal seeks to adduce further evidence on the hearing of the appeal, an application must be filed at least 14 days prior to the date of the commencement of the hearing of the appeal. The supporting affidavit accompanying the affidavit must state:

• • the facts on which the application relies
• • the grounds of appeal to which the application relates
• • the evidence that the applicant wants the appeal court to receive, or at least the nature of the further evidence
• • the reason why the evidence was not adduced at the hearing

Abandoned Appeals

An appeal is taken to be abandoned if the appellant fails to file the Draft Index to the Appeal Book, Appeal Book or transcript by the date ordered.

If an appeal is taken to be abandoned, the appellant may be ordered to pay the costs of all other parties. Any application for costs of an abandoned appeal must be filed within 28 days after the date the appeal is taken to have been abandoned.