Family Law Practice Direction: Appeals

(FAM-APPEALS)

1. Introduction

1.1 Subject to paragraph 1.2, this Practice Direction sets out the procedure for all family law appeals and applications for leave to appeal from a judgment of:

  1. a Judge of the Federal Circuit and Family Court of Australia (FCFCOA) exercising the original jurisdiction of the Court;
  2. a single Judge of a Supreme Court of a State or Territory exercising the original jurisdiction of the Court; or
  3. a family law Magistrate of Western Australia.

1.2 This Practice Direction does not apply to judgments of a Judge of the FCFCOA (Division 2) exercising its appellate jurisdiction pursuant to the child support legislation, or appeals heard de novo by the FCFCOA (Division 1) from a court of summary jurisdiction.

1.3 It is to be read together with:

  1. the Family Law Act 1975 (Cth) (Family Law Act);
  2. the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act);
  3. the Federal Court and Federal Circuit and Family Court Regulations 2022;
  4. the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules); and
  5. Central Practice Direction – Family Law Case Management.

1.4 This Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.

1.5 To the extent this Practice Direction is inconsistent with any act, regulation, rule or other legislation (whether or not expressly listed above), the act, regulation, rule or other legislation shall prevail.

2. Commencement of appeal

Where to commence

2.1 An appeal or an application for leave to appeal must be filed in the appellate jurisdiction of the FCFCOA at the National Appeal Registry.

Parties to an appeal/application to appeal

2.2 An appeal or an application for leave to appeal may be commenced by a party to the judgment being appealed, or by a third party affected by the judgment.

2.3 Each person who is directly affected by the orders sought in the Notice of Appeal, or is likely to be interested in maintaining the order under appeal, must be made a respondent to the appeal or application for leave to appeal: see rule 13.04 of the Family Law Rules.

Limitation periods and leave requirements

2.4 A Notice of Appeal must be filed within 28 days of the making of the appealed orders.

2.5 Where a Notice of Appeal is sought to be filed out of time, an applicant must seek an extension of time to file the Notice of Appeal by filing an Application in an Appeal.

2.6 An Application in an Appeal seeking an extension of time to commence an appeal must be filed together with an affidavit stating the facts relied on in support of the application and annexing a draft Notice of Appeal.

Filing a Notice of Appeal

2.7 An appeal or an application for leave to appeal is commenced by filing a Notice of Appeal.

2.8 A copy of the appealed orders must be filed with a Notice of Appeal.

2.9 The appellant/applicant must also pay the filing fee set by regulation, unless an exemption applies. A Judge or Judicial Registrar may require a party to give an undertaking to pay a filing fee before accepting a document for filing.

When an affidavit is required

2.10 An affidavit must not be filed with a Notice of Appeal.

2.11 An affidavit must be filed with an Application in an Appeal.

2.12 An affidavit must be filed in the proper form as outlined in the Family Law Rules.

Urgent applications

2.13 If a party seeks the expedition of the appeal, that party must seek an order that the matter be given an urgent listing (urgent application). An urgent application must be accompanied by:

  1. an affidavit stating the facts relied on in support of the urgent application; and
  2. a cover letter as to urgency, outlining the nature of the application and the basis upon which an urgent listing is required. The cover letter should refer to specific paragraphs of the affidavit relied upon in support of the urgent application.

2.14 An urgent application must be made by filing an Application in an Appeal.

Notifying the other party/parties

2.15 The applicant must serve the following documents on each other party in accordance with rule 13.05 of the Family Law Rules:

  1. the Notice of Appeal;
  2. a copy of the appealed orders;
  3. any Application in an Appeal; and
  4. any affidavit filed.

2.16 The Notice of Appeal must be served within 14 days after it is filed.

2.17 If the appeal or application for leave to appeal is from an order of a court other than the FCFCOA or the Family Court of Western Australia, the appellant must also give a copy of the Notice of Appeal to:

  1. the Registrar of that court; and
  2. if the application for leave to appeal relates to a judgment under the child support legislation, the Child Support Registrar,

within 14 days of filing.

Draft Index to the Appeal Book

2.18 The appellant/applicant must file a Draft Index to the Appeal Book within 28 days after:

  1. filing the Notice of Appeal; or
  2. the date when the reasons for judgment that relate to the order subject of the appeal are issued.

2.19 Appeal books are not to be prepared with the Draft Index to the Appeal Book.

2.20 If the appellant/applicant fails to file a Draft Index to the Appeal Book within time, the appeal is taken to be abandoned.

Responding to a Notice of Appeal

2.21 A respondent must file either:

  1. a Notice of Address for Service, if the respondent wishes to contest the appeal; or
  2. a Submitting Notice, if the respondent does not wish to contest the appeal in accordance with rule 13.09 of the Family Law Rules.

2.22 A Submitting Notice must be filed within 14 days after the procedural hearing.

2.23 A respondent to an appeal who also wants to appeal from the judgment which the appellant has appealed, must file a Notice of Appeal endorsed as a cross-appeal.

2.24 A Notice of Appeal for a cross-appeal be filed within the later of:

  1. 14 days after the Notice of Appeal for the appeal is served on the cross-appellant; or
  2. 28 days after the date of the order.

2.25 A respondent to an appeal who does not want to cross-appeal from the judgment under appeal, but contends that the judgment should be affirmed on grounds other than those relied on by the Court appealed from, must file a Notice of Contention.

Grounds of appeal and orders sought

2.26 An appellant, cross-appellant or applicant must briefly and precisely set out in the Notice of Appeal the legal, factual and/or discretionary error(s) alleged within the grounds of appeal.

2.27 The grounds of appeal and the orders sought in a Notice of Appeal may be amended without permission, at any time up to and including the date fixed for filing of the Summary of Argument by the appellant.

2.28 Not later than five days before the hearing of an appeal, notice must be given to the Appeal Judicial Registrar and to the other parties of any grounds that are to be abandoned.

3. Leave to appeal

3.1 An applicant must seek leave to appeal from:

  1. a prescribed judgment (see the Federal Court and Federal Circuit and Family Court Regulations 2022); and
  2. a judgment of the FCFCOA exercising original jurisdiction under the Child Support (Assessment) Act 1989 (Cth) or the Child Support (Registration and Collection) Act 1988 (Cth) (including a judgment or decision rejecting an application that the primary judge disqualify himself or herself from further hearing the matter).

3.2 An applicant seeking leave to appeal must set out the facts upon which the applicant relies in support of leave at Part C of the Notice of Appeal.

3.3 Where an applicant requires leave to appeal, the Court will make a determination as to whether an application for leave to appeal should be heard at the same time as the appeal itself or whether it should be heard separately from the appeal: see rule 13.13(b) of the Family Law Rules. The Appeal Judicial Registrar may seek the parties' views as to the course to be followed.

3.4 Where the Court determines that the application for leave to appeal will be heard at the same time as the appeal itself, the rules and paragraphs of this Practice Direction applicable to the hearing of appeals will apply. The Summaries of Argument of each party for the appeal hearing should deal with the issue of leave to appeal which has been addressed in Part C of the Notice of Appeal.

3.5 Where the Court determines that the application for leave to appeal will be heard separately and prior to the appeal itself:

  1. appeal books must not be filed unless and until leave to appeal is granted or unless otherwise ordered by the Court; and
  2. at the time the parties are advised of the date for the hearing of the leave application, orders will be made:
    1. for the filing by each party of a Summary of Argument not exceeding 5 pages with respect to the leave application;
    2. where appropriate, for the preparation of an Application Book containing any other documents necessary for the disposition of the application for leave; and
    3. where appropriate, that the application be dealt with by the court without an oral hearing: see section 28(4) of the FCFCOA Act and rule 13.13(c) of the Family Law Rules.

3.6 The application for leave to appeal will be listed before a Full Court or a single Judge, as applicable. Absent any direction to the contrary, any oral argument in a hearing with respect to an application for leave is not to exceed 20 minutes per party.

4. Conduct of appeal proceedings

4.1 Appeals and applications for leave to appeal may be heard before a Full Court or by a single judge of the FCFCOA (Division 1). Appeals heard before a Full Court are governed by Part 13.3 of the Family Law Rules. Appeals heard before a single judge are governed by Part 13.4 of the Family Law Rules.

4.2 Appeals from an order of a judge of the FCFCOA (Division 1), the family court of a state, or a single Judge of a Supreme Court of a State or Territory must be heard by a Full Court.

4.3 Appeals from an order of the FCFCOA (Division 2) or a family law Magistrate of Western Australia will be heard by a single judge, or by a Full Court if the Chief Justice of the FCFCOA (Division 1) considers that it is appropriate.

Procedural hearing

4.4 Upon the filing of the Draft Index to the Appeal Book, the Court will fix a date as soon as practicable for a procedural hearing, as follows:

  1. in the case of an appeal being determined by a single Judge, before that Judge, another Judge or an Appeal Judicial Registrar (unless the Judge or Appeal Judicial Registrar makes orders in chambers in the absence of the parties on the basis of the documents filed); or
  2. in the case of an appeal being determined by a Full Court, before an Appeal Judicial Registrar or a Judge if the Appeal Judicial Registrar considers it appropriate.

4.5 At the procedural hearing, the Court may make orders with respect to the future conduct of the appeal in accordance with rules 13.18 and 13.27 of the Family Law Rules as applicable.

4.6 The appellant/applicant or the appellant/applicant's lawyer must attend the procedural hearing. A respondent, a lawyer for a respondent, and an Independent Children's Lawyer may each attend a procedural hearing.

Hearing of the appeal

4.7 A Notice of Appeal will be heard at an appeal hearing by way of oral argument. Oral argument will ordinarily be restricted to the issues raised by the Notice of Appeal and the Summary of Argument unless leave is otherwise given.

4.8 The Court may restrict the time allowed for oral argument.

4.9 If a party does not attend, the Court may:

  1.  if the appellant does not attend, dismiss the appeal; or
  2.  if the respondent does not attend, proceed with the appeal.

4.10 A party may request permission from the court to attend any hearing by electronic means in accordance with rule 13.32 of the Family Law Rules.

5. Further documents to be filed

Appeal books and transcript

5.1 Unless otherwise ordered, appeal books are required as follows:

  1. in all appeals to be determined by a Full Court; and
  2. in appeals being determined by a single judge, where so ordered by the Court.

5.2 Where a party is required to file an appeal book, unless otherwise ordered, the appeal book must contain only the following documents:

  1. the documents put in evidence at the hearing or trial to which the appeal relates, including the orders, applications, affidavits and exhibits relevant to the grounds of appeal or contention and necessary to enable the Court hearing the appeal to reach its judgment; and
  2. if the appeal involves a challenge to the exclusion of evidence, the document that:
    1. is the subject of the challenge; and
    2. was tendered, but not admitted as evidence, at the hearing or trial to which the appeal relates.

5.3 Prior to the filing of the appellant's Summary of Argument, the parties must file a schedule which identifies any material in the appeal book which was not relied upon at trial or was struck out. In the event of disagreement, at the commencement of the hearing the parties must be able to direct the Court to the relevant transcript.

5.4 The appeal book must be prepared in accordance with rule 13.21 of the Family Law Rules and any procedural orders.

5.5 Where an appeal book is not required, the documents that must be before the Court hearing the appeal are listed in rule 13.28 of the Family Law Rules.

5.6 Where ordered, the transcript must be filed with the Court and served on the other parties in electronic form from the Court's authorised provider. Unless ordered, a paper version of the transcript must not be included in the appeal book.

Summary of Argument and List of Authorities

5.7 Where a party is required to file a Summary of Argument, such document must:

  1. set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant page(s) of the appeal book and transcript);
  2. set out the orders sought (if they differ from the orders sought in the Notice of Appeal or any Amended Notice of Appeal);
  3. not exceed 15 pages, unless leave has been given;
  4. be easily legible, using a font size of at least 12 points and 1.5 line spacing;
  5. have all paragraphs numbered consecutively;
  6. be signed by the person who prepared the Summary of Argument; and
  7. include the signatory's name, email address, telephone number and document exchange number (if any) at which the signatory may be contacted.

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

  1. identify the error (including any failure to make a finding of fact);
  2. identify the finding that the party contends ought to have been made;
  3. state concisely why the finding, or failure to make a finding, is erroneous; and
  4. refer to the evidence to be relied upon in support of the argument (including any reference to the relevant page(s) of the appeal book and transcript).

5.9 Where a party is required to file a List of Authorities, such document must:

  1. be divided into two parts as follows:
    1. Part 1 must contain only those authorities which will be cited during the appeal; and
    2. Part 2 must contain those authorities which might be called for during the appeal, but which it is not intended to cite;
  2. in relation to reported judgments:
    1. if the judgment is available in an authorised report series, cite the judgment as reported in that series;
    2. if the judgment is not available in an authorised report series, cite the judgment as reported where it is available; and
    3. in all cases, identify the relevant page or pages in the report; and
  3. in relation to unreported judgments:
    1. where a medium neutral citation is available, provide that citation and identify the relevant paragraph or paragraphs; and
    2. where a medium neutral citation is not available, be accompanied by a copy of the judgment and identify the relevant passage/s by page or paragraph number/s as appropriate.

5.10 Unless otherwise ordered, the Summary of Argument and List of Authorities must be filed:

  1. for the appellant, at least 28 days before the first day of sittings in which the appeal is listed for hearing; and
  2. for the respondent and any Independent Children's Lawyer, at least 7 days before the first day of the sittings in which the appeal is listed for hearing.

5.11 Failure to file a Summary of Argument within the timeframe prescribed above may result in the appeal being dismissed: see rule 13.45 of the Family Law Rules.

6. Further evidence on appeal

6.1 A party to an appeal may apply for an order that the Court receive further evidence on the hearing of the appeal by filing an Application in an Appeal. An Application in an Appeal seeking to adduce further evidence must be filed at least 14 days before the date of the commencement of the sittings in which the appeal is listed for hearing.

6.2 An Application in an Appeal seeking to adduce further evidence must be filed together with a supporting affidavit stating:

  1. briefly but specifically, the facts on which the application relies;
  2. the ground(s) of appeal to which the application relates;
  3. the evidence that the applicant wants the appeal court to receive or at least the nature of the further evidence; and
  4. the reason why the evidence was not adduced at the hearing.

6.3 Any other party to the appeal may usually file an affidavit in response to the application at least 7 days before the commencement of the sittings in which the appeal is listed for hearing.

6.4 The hearing date for an application to adduce further evidence will usually be the same as the date fixed for hearing of the appeal or application for leave to appeal.

6.5 A subpoena may only be issued in an appeal if leave to issue the subpoena has been given by the Court: see rule 13.34 of the Family Law Rules.

7. Cost applications in appeals

7.1 Any party who intends to seek an order for costs at the conclusion of the appeal (subject to the outcome) must file and serve a schedule of costs to be sought on a party/party basis at the scale prescribed by the Family Law Rules.

7.2 Unless special circumstances apply, any application for costs will be heard immediately following the conclusion of the appeal hearing. If any party files a schedule of costs, all parties must be in a position to address the Court on the question of costs (including quantum) at the conclusion of the appeal hearing.

7.3 An application for costs may be made at any stage during an appeal or application for leave to appeal, or by filing an Application in an Appeal within 28 days after the finalisation of the appeal.

8. Abandoned appeals and reinstatement

8.1 An appeal, or application for leave to appeal, will be taken to be abandoned if the appellant fails to file:

  1. the Draft Index to the Appeal Book within the time prescribed;
  2. any appeal book by the date ordered; or
  3. any transcript by the date ordered.

8.2 Where an appeal is taken to be abandoned, the appellant/applicant 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 became abandoned by filing an Application in an Appeal together with an affidavit stating briefly the facts relied upon in support of the application.

8.3 An applicant may seek that the Court reinstate an appeal that has been taken to be abandoned by filing an Application in an Appeal together with an affidavit stating briefly the facts relied upon in support of the application.

9. Consent orders on appeal

9.1 Where the parties agree about the orders the Court will be asked to make on appeal, the parties may file a draft consent order setting out the terms of the agreement.

9.2 Where the parties agree that an appeal or an application for leave to appeal is to be resolved by consent, the parties must forward to the Court submissions detailing the appealable error which has been identified by the parties together with the draft proposed consent order.

9.3 If the parties agree about the orders the court will be asked to make but disagree about the order for costs, the Appeal Judicial Registrar may fix a date for hearing for the argument about costs, without requiring an appeal book to be prepared or a procedural hearing to be held.

10. Stay of orders

10.1 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.

10.2 An application for a stay of the order or orders must be made by filing an Application in a Proceeding in the registry in which the order under appeal was made.

10.3 An Application in a Proceeding seeking a stay of the order must be filed together with an affidavit stating the facts relied on in support of the application.

10.4 Any stay application will be heard by the Judge or Magistrate who made the order under appeal, unless that judicial officer is unavailable.

11. Default

11.1 Where a party is in default of any requirement of the applicable Rules, this Practice Direction or any procedural order of the Court, any party not in default may bring the matter to the attention of the Appeal Judicial Registrar, who may then make appropriate directions.

11.2 Where a party has failed to comply with an order and the appeal has not otherwise been taken to be deemed abandoned, the appeal or application for leave to appeal may be dismissed for non-compliance or delay pursuant to rule 13.45 of the Family Law Rules.

12. Further information

12.1 For information on how family law proceedings are conducted in the FCFCOA, please refer to Central Practice Direction – Family Law Case Management.

12.2 Parties should also consult the FCFCOA website at www.fcfcoa.gov.au for further information about appeal proceedings.

 

The Honourable Justice William Alstergren

Chief Justice (Division 1) | Chief Judge (Division 2)

Federal Circuit and Family Court of Australia

Date: 1 September 2021

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