Appeals and Reviews

Contributed by HenryMoser and current to 27 July 2018

Appeals against a decision of a Magistrate and reviews of a decision made by a Registrar

Subject to permission to appeal being necessary, any decision by a Magistrate or Registrar can be brought before a Judge by way of appeal or for review.

The Judge will reconsider the matter afresh and will not determine whether the first decision was incorrect, but will replace it if the Judge comes to a different conclusion. New and additional evidence may be adduced before the Judge.

A review is made by filing a Form 2 and no fee is payable. An appeal is filed with a Form 20 and a fee is payable.

Appeal against a decision of a Judge

Again subject to permission to appeal being necessary, any decision by a Judge may be brought before either:

• the Family Court of Australia, for cases arising under the Family Law Act 1975 (Cth) and the Child Support legislation; or
• the Court of Appeal of Western Australia, for cases arising under the Family Court Act 1997 (WA).

An appeal against a decision of a Judge is dealt with by way of rehearing, that is, only the evidence used at the trial will be considered. In limited circumstances the Court may allow fresh evidence to be adduced.

The Court will consider whether the Judge made an error in reaching the decision either on the facts or by the application of the law. An appeal is lodged with a Form 20 and a fee is payable.

Cases where permission to appeal is required

All appeals involving Child Support issues and any interim decisions in financial matters need the permission of the Court with whom the appeal is lodged before the appeal can be heard.

Permission is only granted where the circumstances of the case require it or where an important legal principle has to be considered.

Stay of an order under appeal

Appealing against an order does not mean that the order cannot be carried into effect. Any order is valid until an appeal is successful. In limited circumstances a party may, however, require the operation of the order to be stayed. The party has to make an application for a stay to the judicial officer who made the order and has to establish that unless a stay is granted, even a successful appeal would have no effect and it would have been fruitless to bring the appeal in the first place.

Time limits

Any appeal or review has to be lodged within 28 days of the making of the order complained of.