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

Family Law Act 1975 Appeals

If the orders you seek to appeal were made under the Family Law Act 1975 (Cth), your appeal will be dealt with by the Federal Circuit and Family Court of Australia (Division 1) (FCFCoA).

All Family Law Act 1975 (Cth) Appeals and Applications in an Appeal are to be filed via email to Appeals.FamilyCourt@justice.wa.gov.au.

The Appeals 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 a Full Court (three judges of the FCFCoA sitting together).

All further information about appeals to the Federal Circuit and Family Court of Australia (including the relevant forms) should be accessed from, and is available on their website.

Family Court Act 1997 (WA) Appeals

If the orders you seek to appeal were made under the Family Court Act 1997 (WA), your appeal will be made either to the Family Court of Western Australia or the Court of Appeal of the Supreme Court of Western Australia (Court of Appeal), 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 Court of Appeal. The forms, time limits and other information can be found on the Supreme Court website.

Appealing a decision of a Family Law Magistrate

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

• 'final orders' are appealed to the Court of Appeal
• '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 under the Family Court Act 1997 (WA) are rarely 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 as Family Law Magistrates 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 Family Law 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.

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.

It is important to include all of your grounds of appeal, as the appeal court will usually only consider the grounds set out in your Notice of Appeal 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.

A Notice of Appeal (Form 20) is used to start an appeal. You must always attach a copy of the orders you are seeking to appeal to the Notice of Appeal. You should not attach any other documents to the Notice of Appeal.

You should also ensure you complete each section of the Notice of Appeal correctly, and follow all instructions carefully to prevent any delays in lodgement of the Appeal.

Leave to appeal

Most appeals to the Family Court of Western Australia (being made under the Family Court Act 1997 (WA)) require leave to appeal.

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. A separate form is not 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.

Application in an appeal

An Application in a Case (Form 2), supported by an affidavit, is used to make an application relating to a current appeal (including seeking leave to rely on further evidence at the appeal), or to seek an extension of time to file an appeal.

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 a Case seeking to rely on further evidence.

The appeal Judge 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 a Case 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.

You can apply for a Registrar's decision (being an order or direction) 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, or evidence (by way of affidavit), before the judge.

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).

The application should:

• provide the name of the Registrar who made the decision (if known)
• provide the date of the decision
• specify the decision sought to be reviewed
• state what decision you seek be made instead, and
• attach a copy of the decision (being the order or direction) sought to be reviewed.

You should also attach a letter setting out the reasons why you say the decision should be set aside.

The time limit for filing an appeal in the:

• Supreme Court of Western Australia (Court of Appeal) 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.

You can apply to extend this time limit.

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 a Case (Form 2) 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 you are proposing to file if the extension is granted.

The only document a respondent to an appeal needs to file before the first hearing date is a Notice of Address for Service.

However, if you receive a Notice of Appeal, and you wish to file your own appeal against the orders, you may file a Notice of Appeal endorsed as a 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. A filing fee is payable to file a cross-appeal.

If you oppose an application relating to an appeal that has been filed, you should file a Response to an Application in a Case (Form 2A), supported by an affidavit.

Filing an appeal does not stop the operation of the order you are appealing.

To do this (if the Notice of Appeal was filed in the Family Court of Western Australia) you need to file an Application in a Case (Form 2) seeking a 'stay', supported by affidavit evidence.

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

A person who has filed a Notice of Appeal (Form 20) or an application relating to an appeal (Form 2), can stop their application by filing a Notice of Discontinuance (Form 10 in Family Court Act 1997 (WA) appeals).

It should be noted the party filing a Notice of Discontinuance may still be ordered to pay the other party's costs.

All Family Court Act 1997 (WA) Notices of Appeal, applications relating to the appeal, and responses to applications relating to an appeal are to be elodged via the eCourts Portal of Western Australia.

Filing fees apply to all Notices of Appeal (unless you are eligible for a fee exemption), 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.
• Application in a Case (Form 2), including applications for an extension of time, or any other application relating to the appeal.
• Response to an Application in a Case (Form 2A).

Visit the fees page for more information.