Appealing – what are the time limits?

Appealing – what are the time limits?

Appealing – what to do and when

1. Preparing your appeal

You prepare your appeal by completing a Notice of Appeal and attaching a copy of the orders you seek to appeal. The notice must be typed or printed clearly and must state:

• If you are applying for leave to appeal, the facts relied on in support of the application for leave.
• Whether the appeal is against all or only part of the orders. If it is against part of the orders, state which part.
• The grounds on which you claim that the decision is wrong. You should point out specifically which principles of law the Federal Circuit Court judge applied wrongly, and/or which of his or her findings of fact are wrong, and why you say the decision is wrong. It is important that the grounds of appeal are prepared carefully as they govern the matters the judge will consider in deciding the appeal.
• What order you want the judge to make in place of the order made by the Federal Circuit Court judge or whether you want a new trial.

2. Time limits on appealing

The Notice of Appeal must be filed in the regional appeal registry no later than 28 days after the day on which the order being appealed was made.

You may apply for an extension of time by filing an Application in an Appeal and an affidavit in support of the application. These documents must be filed in the regional appeal registry and served on the other parties or their lawyers (including any independent children’s lawyer).

The application will be heard by a judge. The Court has discretion whether or not to extend the time. Matters that will be taken into account when deciding whether to allow you the extension of time to file the appeal will include:

• the length of the delay
• the reasons for the delay
• any disadvantage it has caused the other party
• the merits of the proposed appeal, and
• the overall justice of the case.

If a judge refuses to grant an extension of time you can apply to the High Court for special leave to appeal. See ‘Appeals to the High Court’ on page 8 for more information.

3. Filing the appeal

The Notice of Appeal and orders you are appealing (the original plus one copy for each party to the appeal) must be filed in the regional appeal registry. Filing can be done by post, by delivering the documents to a family law registry or by electronic communication (that is, fax or email).

At filing, you must pay a filing fee. If you are filing the Notice of Appeal by electronic communication, you may pay the filing fee at your nearest family law registry and fax or email a copy of your receipt (or an application for reduction of the fee) with your Notice of Appeal.

Note: the filing fee cannot be returned if you withdraw or abandon your appeal.

4. Serving the Notice of Appeal on the other party

You must arrange for a copy of the Notice of Appeal to be served on each other party to the appeal or their lawyers, including any independent children’s lawyer within 14 days of filing. Service may be conducted by:

• post (by you or someone acting for you)
• hand (personal delivery – you cannot serve the papers yourself ).

The Court’s Service Kit provides information on service and includes the Affidavit of Service that will be given to you when you file the Notice of Appeal. You can follow the instructions in the kit or arrange for service to be conducted by a process server for a fee.

5. Draft Index to the Appeal Books

Within 28 days of filing the Notice of Appeal (or the date of any reasons for judgment), you must file a draft index to the appeal books with the Court and serve it on the respondent and all other parties to the appeal.

The draft index lists the documents which were in evidence before the Federal Circuit Court judge and that will be included in the appeal books or that must be before the judge hearing the appeal. If you fail to file and serve a draft index within 28 days of filing, the appeal will be taken to be abandoned (see ‘Prosecution of the appeal’ on page 6).

Cross-appeals

The respondent to the appeal may also consider appealing if he or she considers that the Federal Circuit Court judge was in error. This is done by filing an original (and one copy for service on each other party) of a Notice of Appeal endorsed as a cross-appeal in the regional appeal registry. The respondent must file any Notice of Appealendorsed as a cross-appeal no later than 14 days after service of the original Notice of Appeal or within 28 days of the order being made, whichever is the later.

The time for filing a cross-appeal may also be extended by order of the Court.

A fee must be paid when filing a cross‑appeal and this fee cannot be returned if you withdraw the cross‑appeal.

In some cases a reduced fee may be sought for a divorce application, or decree of nullity, or in respect of other fees, an exemption if you hold certain government concession cards or you can demonstrate financial hardship. For more information see the fees section of the website.