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The Appeal Process

An appeal is not a rehearing of the original dispute. For an appeal to be successful, a party must convince the Court that the Judge made an error with regard to the case as it was presented before him or her.

Appeals are listed for hearing before either a single judge of the Federal Circuit and Family Court of Australia (“the Court”) (Division 1) or a Full Court (being three judges) of the Division 1 Court.

Decisions from a judge of the Division 1 Court must be heard by a Full Court.

To appeal an order a Notice of Appeal must be filed in the National Appeal Registry.

Time Limit for Lodgement of Appeal

A Notice of Appeal must be filed within 28 days after the date the order appealed from was made. 

It is possible to apply for leave to appeal out of time, although there is no guarantee the Court will grant such leave.  The relevant factors the Court will consider in granting leave are:

  1. the length of the delay;

  2. the reasons for the delay;

  3. any disadvantage it has caused the other party;

  4. the merits of the proposed appeal; and

  5. the overall justice of the case.

Grounds for Appeal

It is not possible to appeal simply because you are not happy with the decision.  The appellant must convince the Court that the first instance Judge made an appealable error, such that the decision should be set aside.  In order to do this you must persuade the appeal Court that the Judge:

  1. Applied a wrong principle of law; or

  2. Made a finding of fact or facts on an important issue which could not be supported by the evidence; or

  3. Exercised his or her discretion to arrive at a decision which was clearly wrong.

What the Court may Order

If the appeal is successful the Court may:

  1. Make a different order to the one made by the Judge, or

  2. Order a retrial (that is, another hearing) by a different Judge.

The appeal will be dismissed if it is unsuccessful.  It is also possible for the Court to find that, although the Judge made some errors, they ultimately came to the correct conclusion and the appeal should therefore be dismissed.

Reviewing a Registrar’s Decision

If a Judicial Registrar or Senior Registrar of the Court has made a decision that you consider is wrong, a party can file an Application for Review to have that decision reviewed by a Judge.

The time period to file an Application for Review is slightly shorter than the appeal period, it being 21 days after the order or decision being made by the Registrar.

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