Do you have Proper Grounds?

Under Division 4 of Part V of the Family Law Act 1975 (Cth), an appeal may succeed only if the first-instance judge:

• Applied the wrong legal test – for example, ignored the child-best-interest factors in s 60CC.
• Made findings no reasonable judge could make on the evidence – a high threshold often called a House v The King error.
• Denied procedural fairness – perhaps by refusing to let you call a key witness.        

However, if the appeal court considers your arguments hopeless, it can dismiss the case at any stage (s 47C).

Act fast – the 28-day clock

The Federal Circuit and Family Court Rules require a Notice of Appeal to be filed within 28 days after the orders are made. Miss that window and you must seek an extension, explaining your delay and showing the other side will not be prejudiced. Extensions are granted sparingly, so early advice is vital.

Identify the Right Appeal Court

• Orders made by a single  judge of the Federal Circuit and Family Court of Australia (Division 1) are reviewed by the Full Court (usually three judges).
• Orders made in Division 2 or by a state Magistrates’ or Local Court are usually appealed to a single Division 1 judge (s 47A).
• You cannot leap frog directly to the High Court; that court hears family-law matters only by special leave after the Full Court has ruled (s 47D).

Filing the Appeal

Your solicitor drafts a Form 101 Notice of Appeal setting out each alleged error and the orders you want the appeal court to make. If the order you are appealing is “interlocutory” (interim) or involves child-support legislation, you must also file a leave application because Parliament insists on extra gate-keeping in those categories (s 47B) Family Law Act 1975. A filing fee is payable, although fee relief is available in genuine hardship.

Preparing the Appeal Books

After the registrar fixes a procedural timetable, the appellant (the person appealing) must collate three indexed Appeal Books:

• Part A – pleadings and  the order under challenge
• Part B – the authorised  transcript and exhibits
• Part C – the reasons for  judgment and any further material the court directs

Meticulous pagination and cross-referencing are essential; non-compliant books are often rejected, causing costly delay.

Written Arguments

Each party files concise written submissions (normally 10–15 pages) explaining why the decision should be over turned or upheld. These submissions are the judges’ first point of contact with your case, so clarity and tight reasoning matter. Fresh evidence is admitted only in exceptional circumstances.

The Appeal Hearing

Most family-law appeals are listed for a single day. Counsel highlights the key passages in the transcript, answers questions from the bench, and responds to the other side’s arguments. Judgment may be delivered immediately (“extempore”) or reserved for a later date.

Possible Outcomes

The appeal court can:

• Dismiss the appeal –  leaving the original orders intact.
• Vary the orders –  for example, change the percentage split of property or tweak parenting arrangements.
• Substitute fresh orders  – the court re-exercises the discretion itself.
• Send the matter back for a re-hearing before a different judge.

Its powers are deliberately broad (s 47E) Family Law Act 1975, but it will intervene only when a genuine error has been shown.

Costs and Financial Risk

Unlike many areas of civil litigation, family-law parties usually pay their own legal costs (s 117(1)) Family Law Act 1975. However, the appeal court may order the loser to contribute to the winner’s costs if the case was unreasonable or the party ignored sensible settlement offers (s 117(2)) Family Law Act 1975. Before you embark on an appeal we give you candid, dollars-and-cents advice so you can weigh the legal merits against the financial exposure.

How Stanley & Co Lawyers Give you the Edge

• Early, honest merit assessment – no false hope; if the decision is defensible, we say so.
• Technically flawless paperwork – our team lodges dozens of appeals each year and knows every rule and registrar preference.
• Persuasive courtroom  advocacy – we brief senior counsel experienced in Full Court work to maximise your prospects.
• Alternatives explained  – sometimes a set-aside application (s 79A) or varied parenting suit is quicker and cheaper.