Appealing the decision of the Court

You may be able to appeal a decision if you think the Court made a mistake about the law. This is called an 'error of law'. 

The Judge may have made an error of law if they:

• did not follow the law correctly
• made a decision or reached a conclusion that was not supported by any evidence 
• made a decision or reached a conclusion that was contrary to the evidence
• used irrelevant factors to decide your case.

You can’t appeal if you think the Court wrongly decided the facts. This is called an ‘error of fact’.

If you are unhappy with the decision of the Court, you may be able to appeal to the Federal Court of Australia within 28 days.

Before you appeal, you should get legal advice.

You must complete a Form 121 - Notice of appeal of appeal from the Federal Circuit and Family Court of Australia.

You can get a blank copy of this form:

• online, from the Forms under the Federal Court Rules 2011 page on the Federal Court of Australia website, or
• from your nearest Federal Court registry.

In your form, you must state:

• whether you are appealing the whole or part of the judgment or orders – if you are appealing some of the orders, you must identify which ones
• the grounds of your appeal or the errors you say the Court made
• the orders that you want the Court to make instead
• your address for service.

You will also need to provide a copy of Judgment or Order and Reasons for Judgment.

You must file your completed form and accompanying documents at the Registry of the Court that made the decision you are appealing.

You will have to pay a filing fee.

If you want to file an appeal outside of the 28 days, you must ask the Court for an extension of time.

You can ask for an extension of time before the 28 days runs out if you cannot file your appeal in time.

To do this, you must also complete:

• a Form 67 – Application for an extension of time
• a Form 59 - Affidavit.

In your affidavit, you must explain:

• why you didn’t file an appeal in time
• the nature of the appeal and the questions involved.

The Court won’t give you an extension unless there are good reasons for doing so. 

Appealing doesn’t automatically stay (stop) the operation of the original decision. You can ask the Court to stay all or part of the original decision until your appeal is heard.

To do this, you must include a request for a stay order in your Notice of appeal.

The Court won’t make a stay order just because you have lodged an appeal. You must demonstrate there is a proper basis for a stay that will be fair to all parties.

As a condition of a stay, the Court may order you to pay some or all of the judgment, or security for the costs of the appeal. 

If there is a risk that the appeal will become useless if a stay is not granted, the Court will normally exercise its discretion to make a stay order.

The Court can refuse to make a stay order if there is a risk that your assets will be disposed of if the order is made.

You must serve a copy of your appeal on the other parties:

• personally, or
• by delivering it to their address for service.

Your appeal will usually be heard by a single Judge of the Federal Court unless it is appropriate for the appeal to be heard by a Full Court or three or more Judges.

At your appeal, the Court will decide whether the law was applied correctly in your case. The Court won’t re-hear the evidence in your case or call witnesses to give evidence.

The Court must determine whether the alleged error(s) in your appeal grounds have been established. To do this, it will consider:

• the relevant documents filed at the original hearing 
• the relevant parts of the transcript from the original hearing, if available
• legal arguments from both parties.

The Court will only consider new evidence or information in special circumstances. 

Generally, your appeal will be conducted in three stages:

1. you explain your case
2. the other party responds to your case
3. you reply to the other party’s submissions. 

After hearing your appeal, the Court may:

• dismiss your appeal
• affirm the judgment
• reverse or vary the judgment
• set aside the judgment and send your case back to the original court to be re-heard in accordance with the Court’s directions
• make a costs order.

The Court could find that while the original Judge made some errors, they came to the correct conclusion and dismiss your appeal.

If your appeal is dismissed, the original judgment will remain, and the other party will be able to take enforcement action.

The Court has the discretion to make a costs order against a party in limited circumstances, including where:

• a party acted vexatiously or without reasonable cause
• a party’s application or response had no reasonable prospects of success
• a party caused costs to be incurred because of an unreasonable act or omission by that party in connection with the conduct or continuation of the case.

The Court will only exercise its discretion if it is appropriate to do so.

Where a costs order is made against a party, it will usually only cover a proportion of the other party’s costs, not the whole amount of legal fees that they have incurred.

For more information about appeals, see:

• General federal law: Appeals on the Federal Circuit and Family Court of Australia website
• Appeals from Courts on the Federal Court of Australia website.