Family Law Appeals in Australia are an essential process for those seeking to challenge a court decision in family law cases.
Essentially, an appeal is your opportunity to ask a higher court to review and change a decision made by a judge. But, it’s important to understand that an appeal isn’t just about disagreeing with the court’s verdict. To successfully initiate a family law appeal, you need to demonstrate that the original decision was made due to a legal error.
This guide will walk you through what family law appeals involve, how they work, and what you need to consider before embarking on this challenging but potentially crucial step in your legal journey.
What can be Appealed in Family Law?
Appealing a decision in the Federal Circuit and Family Court of Australia is not as simple as merely requesting a decision be reheard because you did not like the outcome. Only where a judge’s decision has been made in error can a matter be reheard. These errors may include:
• An error of law; or
• An error of fact.
An appeal may be warranted where the judge:
• Was biased or failed to treat parties equally;
• Made an error reaching their verdict;
• Failed to provide reasoning for their decision;
• Failed to adequately consider all available evidence; or
• Failed to uphold procedural fairness.
It is important to note that some orders cannot be appealed including the following orders:
• Joining or removing a party;
• Adjourning or expediting a hearing; or
• Other orders made during the course of the proceedings that do not conclude a part of the parties’ dispute.
The Appeals Process in Simple Steps:
1. Starting Your Appeal:
• File a ‘Notice of Appeal’ within 28 days of the original court order.
• This notice should state:
(a) You’re asking for permission to appeal (leave for an appeal).
(b) The orders you’re challenging.
(c) The reasons for your appeal (grounds).
(d) The changes you want if you win the appeal.
2. If You Miss the Deadline:
• You can ask for more time by:
(a) Filing the necessary documents.
(b) Explaining your substantial reasons for the delay.
(c) Notifying all other parties involved.
• Extensions are granted based on the merit of your reasons and the impact of the delay on others.
3. Special Permission (Leave to Appeal):
• Might be needed to proceed with your appeal.
• Usually not required for temporary orders related to children’s welfare.
• Required for most other types of orders, including those about child support.
4. Notifying Others:
• After filing, send the ‘Notice of Appeal’ to all parties by mail or in person within 14 days.
5. Cross-Appeal Option:
• If the other party believes there was a mistake, they can file a counter ‘Notice of Appeal’ within 14 days of your appeal notice.
6. Submitting Evidence:
• Within 28 days of your appeal notice, submit a draft index of relevant documents for the appeal.
• Failing to do so means your appeal is abandoned.
7. Procedural Steps:
• After submitting the index, you’ll receive dates for:
(d) A procedural hearing to organise the appeal.
(e) The actual appeal hearing.
8. During the Appeal Hearing:
• Judges review your appeal notice, evidence, and hear both sides’ arguments.
• It’s not a complete redo of the trial, but a review of the original decision.
• The aim is to have a decision within three months of the hearing.
Key Documents Needed for your Appeal
There are compulsory documents required for an appeal including the following:
• Notice of Appeal;
• Draft index to the appeal book;
• The order being appealed;
• Reasons for judgement from the primary judge;
• Any relevant previous orders;
• The application decided by the primary judge;
• Relevant affidavits;
• Family expert evidence
• Exhibits tendered before the primary judge; and
• Relevant parts of the transcript of the original hearing
Other relevant documents may include:
• A summary of arguments if ordered to do so;
• Application in an Appeal; and
• Affidavit in Support.
Deadlines: When to File an Appeal
1. A Notice of Appeal must be filed within 28 days of the orders being made.
2. Within 14 days of filing the Notice of Appeal, the notice must be served on the other parties.
3. Within 14 days of being served the notice, the Respondent may file a Notice of Appeal as a cross-appeal.
4. The Appellant must file a draft index to the appeal book within 28 days of filing the Notice of Appeal.
5. Within 14 days after the procedural hearing, the Respondent may file a submitting notice if they do not oppose the appeal.
How Appeals are Judged
An appeal will only succeed if the Court is convinced that the primary judge made an error of law and the law was applied incorrectly. The Court will not conduct a new hearing of the case.
An appeal will be heard by one or more judges depending on which Court and division made the original orders.
Possible Outcomes after an Appeal
If the appeal judge or judges finds that the primary judge made an error when making their decision, new orders may be made.
If the appeal judge finds that the primary judge made an error, however the correct conclusion was still reached, the appeal judge may uphold the original orders and dismiss the appeal.
If the appeal has no merit, then the appeal will be dismissed.
You may also apply to the High Court for special leave to appeal a decision of the Full Court or a single judge hearing an appeal.
The Cost of Appealing a Family Law Decision
There are costs involved in appealing a decision by the Family Court.
• There are fees involved in filing the documents and you may have to pay for a transcript of the original hearing.
• Additionally, you will likely have to pay for lawyer’s fees unless you are self-represented, which is not recommended as an appeal is very technical and will require deep legal knowledge.
• Further, there is the potential for the Court to order that one party pay the other party’s legal fees.
If the appeal is successful on a question of law, it possible to request that the Court recommend to the Attorney-General that a payment be made towards your costs. The most that can be awarded is $4,000.
Coping with Stress During the Appeal
It is likely the heightened levels of stress you experienced during the original hearing will recur for the appeal process. It is important to manage your emotions, utilising healthy coping mechanisms that worked for you during the original proceedings.
It may be beneficial to seek the assistance of a mental health professional such as a counsellor or psychologist to help manage your emotions.
Where to find Help and Advice for your Appeal
Appeals require the assistance of experienced lawyers as they are uncommon and can be complicated. They also require adherence to strict deadlines. It is strongly recommended to seek expert legal representation if you are appealing a decision in the Family Court.
At Matthies Lawyers, we are here to cater to your family law needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.
Contact us today for expert legal advice and support or call +61 3 8692 2517.
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Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.