Family Court of Western Australia

Appeals

You can appeal a decision of the Court, but you need to establish valid grounds of appeal. You cannot appeal simply because you are not happy with the outcome, and you need to persuade the Court that the Judicial Officer made a significant error of law or fact.

You should seek legal advice before considering an appeal, as the circumstances in which parties can appeal are limited, and costs are often awarded against an unsuccessful applicant.

This page contains information about:

  • establishing grounds of appeal
  • the different types of appeals
  • reviews of decisions by registrars
  • how to file an appeal
  • the time frames for filing an appeal, and
  • responding to an appeal.

Grounds of appeal

In most cases an appeal is not a re-hearing of the original dispute, so you cannot introduce new evidence.

You need to establish an error in the law that was applied, or an error as to the important facts in the case. For example, you need to establish that the decision maker made an error when considering the evidence available at the original hearing, or refused to take into account available evidence.

You need to clearly set out the type of errors you are relying on to support your appeal. These are known as the ‘grounds of appeal’, and you need to include them as a numbered list in your Notice of Appeal (Form 20). It is important to include all your grounds of appeal, as the appeal court will usually only consider these grounds when making its decision.

It is also possible to appeal if you can establish that a decision made in the exercise of a discretion was outside the range of reasonably possible outcomes. It is important to note that it is not enough that an appeal court could come to a different decision, you need to establish that the original decision was outside the range of reasonably possible outcomes.

 

Further evidence in an appeal

Most appeals consider only the evidence that was available to the Magistrate or Judge at the original hearing.

However, once a Notice of Appeal has been filed it is possible to file an Application in an Appeal (Form 21) seeking to rely on further evidence.

The appeal court usually only allows further evidence to be relied on if that evidence was not available or not reasonably available at the time of the original hearing.

The Application in an Appeal needs to be supported by an affidavit setting out in reasonable detail:

  • what the further evidence is
  • why it was not or could not have been produced at the original hearing, and
  • what bearing the further evidence would have had on the original decision if it had been taken into account.

 

Types of appeals

The type of appeal available depends on which court made the original decision, and the legislation under which the order was made.

Family Court Act 1997 Appeals

The Family Court Act 1997 (WA) generally deals with cases where parties have never been married to each other. Appeals under this Act are made either to the Family Court of Western Australia or the Supreme Court of Western Australia, depending on the decision maker.

Appealing a decision of a judge

Orders made by a judge under the Family Court Act 1997 are appealed to the Supreme Court of Western Australia. The forms, time limits and other information can be found on the Supreme Court website.

Appealing a decision of a Family Court Magistrate

If an order was made by a Magistrate under the Family Court Act 1997, the type of order is relevant, as:

  • ‘final orders’ are appealed to the Supreme Court of Western Australia.
  • ‘interim orders’ (also called ‘interlocutory orders’) are appealed to the Family Court of Western Australia.

Most interlocutory or interim orders start with the words ‘until further order’, but this is not always the case. Most parenting orders are regarded as interlocutory orders, even if they appear to be final orders, because parenting orders are rarely ever considered to be final.

Determining whether an order is a ‘final order’ or an ‘interlocutory order’ can sometimes be difficult, and it is important to seek legal advice before appealing to avoid starting the appeal in the wrong jurisdiction.

Appealing other Magistrates' decisions

Magistrates other than those who are appointed to the Family Court can hear family law cases, particularly in regional areas. Proceedings are often transferred to the Family Court of Western Australia after the initial hearing, but they have the ability to make orders.

If a Family Court Act 1997 order is made by a Magistrate other than a Magistrate of the Magistrates Court 150 Terrace Road, Perth, it can be appealed to the Family Court of Western Australia.

In this type of appeal, the Court conducts the hearing all over again, but can take into account the evidence given at the original hearing.

Family Law Act 1975 Appeals

The Family Law Act 1975 (Cth) generally deals with people who are or were married to each other.

Family Law Act 1975 orders are appealed to the Family Court of Australia. If the order was made in Western Australia, the appeal can be filed at the Family Court of Western Australia.

A Registrar assesses the documents and can also hold procedural hearings in Perth. More difficult procedural hearings and the appeals themselves are either heard by a Judge sitting alone or by the Full Court (three judges of the Family Court of Australia sitting together).

Further information about appeals to the Family Court of Australia is available on their website www.familycourt.gov.au.

Reviewing a Registrar’s decision

You can apply for a Registrar’s decision to be reviewed by a Judge, who can set it aside and make a new decision. When you ask for a review you are entitled to put further information before the judge.

The jurisdiction of the decision maker determines where you apply for a review.

 

Filing an appeal

A Notice of Appeal (Form 20) is used to start an appeal.

An Application in an Appeal (Form 21) supported by affidavit is used to make an application relating to a current appeal, or to seek an extension of time to appeal.

(see further information about extensions of time below)

You may need to request leave to appeal when making your application.

Leave to appeal

Decisions requiring leave to appeal include:

  • most Family Court of Australia orders, including interim or procedural orders which are not an interim parenting orders; and
  • most appeals to the Family Court of Western Australia.

Whether leave to appeal is required in any particular case can be difficult to decide and you should seek legal advice.

Where leave is required, you fill in the ‘Leave to Appeal’ section of the Notice of Appeal (Form 20). A separate form isn’t required. Set out the grounds on which you are requesting leave in succinct point form.

The grounds for seeking leave to appeal are not the same as the grounds of appeal. You have to establish whether there is sufficient doubt about the decision to justify it being reconsidered, and whether refusing leave would cause substantial injustice.

Applying for the review of a decision

To request a review of a decision of a Registrar of the Family Court of Western Australia, you need to file an Application in a Case (Form 2).

To request a review of a decision of a Registrar relating to an appeal to the Family Court of Australia, you should file an Application in an Appeal (Form 21).

The request needs to:

  • specify the decision sought to be reviewed;
  • provide the name of the Registrar who made the decision (if known);
  • provide the date of the decision;
  • attach a copy of the decision sought to be reviewed if you were notified of the decision in writing; and
  • attach a letter setting out why you say the decision should be set aside and what decision should be made instead.

Time limits

The time limit for filing an appeal in the:

  • Supreme Court of Western Australia is 21 days from the date the order you are appealing; and
  • Family Court of Western Australia is 28 days from the date the order you are appealing.

If you are seeking a review of a decision of:

  • a Registrar of the Family Court of Western Australia, you should file an Application in a Case (Form 2) within 28 days of the decision.
  • a decision of a Registrar relating to an appeal to the Family Court of Australia, you should file a Application in an Appeal (Form 21) within 14 days of the date of the decision.

You can apply to extend these time limits.

Extensions of time to appeal

Extensions of time are not automatically granted. The Judge hearing the application takes into account whether:

  • the reason for the delay is satisfactory;
  • there is a substantial issue to be raised on appeal; and
  • the hardship or prejudice to the other party caused by the delay.

If an application to extend the time to appeal is unsuccessful, the applicant will often be ordered to pay the costs of any other party. It is not uncommon for the applicant to have to pay costs even if the application is successful.

You can request an extension of time to appeal by filing an Application in an Appeal (Form 21) supported by an affidavit. The affidavit should include:

  • an explanation for the delay;
  • the reasons why an extension of time should be granted; and
  • an explanation of the merits of the proposed appeal and why the appeal is important.

You also need to attach to your affidavit a signed copy of the Notice of Appeal (Form 20) you are proposing to file if the extension is granted, and include two additional copies.

Responding to an appeal

If you receive a Notice of Appeal, you can decide to:

  • file your own appeal against an order, with a Notice of Appeal (Form 20) endorsed as cross-appeal. It needs to be filed within 14 days after receiving the other party’s Notice of Appeal, or within 28 days of the order being appealed. You can request an extension of time to file a cross-appeal.
  • oppose the application by filing a Response to an Application in an Appeal (Form 21A) supported by an affidavit.

What happens to a decision if I appeal it?

Filing an appeal does not stop the operation of the order you are appealing. To do this you need to file an Application in a Case (Form 2) supported by affidavit seeking a ‘stay’. The application should be filed in the same court that made the order you are seeking to stay.

You should not file the Application in a Case until your Notice of Appeal has been accepted for filing.

Stopping an appeal

A person who has filed a Notice of Appeal; or an Application in an Appeal can stop their application by filing a Notice of Discontinuance (Form 10). It should be noted the party filing a Notice of Discontinuance may be ordered to pay the other party’s costs.

Fees

Filing fees apply to all Notices of Appeal (Form 20), and there may be fees for appeal hearings.

There is no fee for filing an:

  • Application in a Case (Form 2) seeking a review of a Registrar’s decision; or
  • Application in an Appeal (Form 21), including applications for an extension of time.

Visit the fees page for more information.


Last updated: 18-Apr-2018

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