Step-by-Step 2021 Guide to Appeal Your Family Matter

Appeal Judges
Tania Sakla - Family Lawyer

Tania Sakla - Family Lawyer

Appeals process in family law matters: How to appeal your family court case

In some instances you will not agree with a decision that the Family Court makes. This alone is not a sufficient reason to try and appeal your family matter. In order to lodge a successful appeal, you must prove that the original decision was wrong. 

This guide will provide you with information on the situations in which you can lodge a family law appeal and everything else there is to know about the appeal process in New South Wales.  

Do you want to file a family law appeal?

If you want to appeal a decision made by the Family Court of Australia you can lodge an appeal in certain situations. It is very important that you are supported by a strong legal team who can help you throughout the process. 

Unified Lawyers regularly represent clients at appeal hearings and can help guide you through the appeal process.

appeal your family matter

What exactly is a family law appeal?

An appeal is when you want the Court to set aside their original ruling. 

It is not a re-hearing of the matter. In order to succeed you need to convince the judges of the Full Court that the lower court made an error in the original hearing. Merely disagreeing with the ruling is not reason for the judge to set aside their original ruling.

Can a Family Court decision be appealed?

You can file an appeal under Part X of the Family Law Act 1975 Cth if a decision was made by a judge in the Family Court of Australia or Federal Circuit Court of Australia exercising original jurisdiction under the Act. You have the right to appeal any final decree or an interlocutory decree where the matter involves child welfare or a Child Support Order.

Appellate jurisdiction is laid out in section 93a of the Family Law Act, which states that the Family Court has jurisdiction to hear appeals from decisions made in the Family Courts of Australia, Family Court of Western Australia, the Federal Circuit Court and the Magristrates Court of Western Australia.

What will the Court consider on appeal?

At the Appeal Hearing, the Court will consider:

  • if irrelevant information was considered in the original hearing
  • finding of fact if the judicial officer failed to consider relevant material or considered facts that could not be supported by evidence.
  • if there was a mistake of fact. In the case of De Winter & De Winter (1979) FLC 90-605 the High Court of Australia ruled that mistake of fact is grounds for overturning an initial court decision
  • whether the original decision was unreasonable or unjust
  • if the judge was bias
  • procedural fairness
  • if the judge did not give adequate reasons for their original decision which would render it impossible for the appellate court to determine whether or not the original ruling was made based on an error of law.

To be successful you will need to prove that there was a substantial injustice at the original hearing and that the judicial officer applied a wrong principle of law in the original hearing.

Who will decide my appeal? 

Normally a single Judge or Magistrate decides a matter in the Family Court. When you lodge an appeal it will be heard by two or three judges, in what is known as the Full Court of the Family Court of Australia.

In limited situations a single judge may hear your appeal.

Do I need leave to appeal a decision?

You will need to be granted leave in certain cases. Examples include where you want to appeal a decision made in relation to Commonwealth legislation, for example an Interim or a Procedural Order that is unrelated to a Parenting Order; or an Order made in relation to the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988. 

The higher court will only grant you leave if they are convinced that there is enough doubt in the orginal judgement; and that refusing leave would cause a significant injustice.

On what grounds can I appeal a decision?

You cannot appeal a decision handed down by the Family Court of Australia on the basis that you simply “didn’t like it”. The most common reasons for appeals are:

  • the judge did not properly assess the evidence
  • the judge made the wrong decision
  • procedural fairness was not applied by the judge
  • natural justice was denied
  • inadequate reasons were given by the judge for their decision
  • the judge was biased when they made their decision
  • the judge abused its discretion when making the initial judgement.

The appeal process

There are a number of steps in the appeal process.

  1. You must lodge the Notice of Appeal to the Regional Appeal Registry within 28 days of the original hearing date. You will need to pay a filing fee. 
  2. The Notice of Appeal will be served on the other parties which may include an independent children’s lawyer, a summary of argument and list of authorities within 14 days of lodgement.
  3. The other party (cross-appellant) may lodge a cross appeal within 14 days of of being served with the Notice of Appeal or 28 days of you appealing the Order.
  4. You have 28 days from the date of lodgement to lodge the draft index to the appeal books. If you do not do so within this timeframe then the Full Court will consider that you abandoned the appeal.
  5. After you have lodged the draft index, the appeal will be listed before the Regional Appeal Registrar for a procedural hearing where the matter will be heard by three judges of the Family Court. The Chief Justice may however make the directive that the matter should only be heard by a single judge.

As the time limits are very strict we recommend you call one of our experienced appeal lawyers today and we can help you fill out the paperwork and lodge it on your behalf.

The appeal hearing

After you have lodged a Notice of Appeal and received your hearing date, the Full Court will review the matter and then make its own judgement. For your appeal to succeed, the judge must be convinced beyond reasonable doubt that the lower court judicial officer made an error in their decision.

The Full Court has three options available to them in the appeal hearing:

  1. Make a new Order
  2. Order a fresh hearing (a retrial)
  3. Uphold the initial judgement and dismiss the case

If the case is dismissed then it is highly likely that you will have to pay some or all of the costs incurred by the other party during the appeal. This typically happens in cases where the appellant didn’t have adequate grounds to lodge the appeal, did not accept reasonable offers made by the respondent or where the appeal was deemed pointless as highlighted in Phillips & Hansford [2020] FamCAFC 28 (12 February 2020) where the interim order had ceased to exist by the time the appeal was lodged.

More FAQs about appealing a family law judgment

Below we answer some common frequently asked questions about appealing Family Court decisions in Australia.

How do I appeal a Family Court decision in Australia?

If you want to appeal a decision made in the Family Court of Australia, you must lodge a Notice to Appeal to the Regional Appeal Registry within 28 days of the original ruling along with a draft index attached. 
If you do not do so, the Court will take it that you have abandoned your appeal. You will also need to pay a lodgement fee when you file a Notice of Appeal. After filing a Notice to Appeal the appellant needs to arrange for a copy of the Notice of Appeal to be served on the respondent, which may include an independent children’s lawyer.

👩‍⚖️ What happens when a family law Judge makes a wrong decision?

Generally, when you appeal a judgement in the Full Court, the judge assumes that the decision made in the lower court is correct, so you must supply compelling evidence to convince them otherwise.
If you can prove that the judge made the wrong decision this is commonly known as a “mistake of law” and is grounds for appealing the original judgement. It may therefore result in a new decision being made.

How long do I have to appeal a Family Court decision?

You have 28 days to file from the date a judgement was made to lodge an appeal for a decision made in the Family Court of Australia.
For decisions made in the Supreme Court of Western Australia, you have 21 days from the date of the Order that you wish to appeal and 28 days from the date of the Order for rulings made in the Family Court of Western Australia.

📑 What happens to a family law decision if I appeal it?

Lodging an appeal does not stop the original Court Order.
 
If you want to stop the operation of the orders until the hearing of the appeal you will need to lodge an Application in a Case to stay the orders. This has the effect of placing them on hold until your appeal hearing. You will need to attach an affidavit. You can only lodge an Application in a Case after you have lodged the Notice of Appeal.

For more information about the appeals procedures in the Family Court see the publications:

Will my family law appeal succeed?

Generally speaking, it is unlikely that your appeal case will progress as only 55% of family law proceedings going to a final hearing. Of those, less than a third of cases will succeed. If your matter is dismissed then in many cases you will be required to pay the respondent’s legal fees plus any other fees that may have been incurred during the appeal process. It is therefore strongly recommended that you hire a lawyer to help you with your case. 

Unified Lawyers specialise in Family Law and have a team of expert lawyers who regularly appear in Court and are experienced in managing the appeal process for clients to increase their chances of winning the case. We are well versed in the appeal processes and can prepare further evidence, including reviewing the relevant parts of the transcript from the original hearing for your appeal and will lodge the Notice to Appeal, along with the filing fee for you. 

With hundreds of five star reviews from satisfied clients on the internet, you can place your confidence in us. Our lawyers will gather the facts from you and then devise a strategy for handling the case. We will do our absolute best to get you the outcome you want and will communicate honestly and openly with you at all times. 

We have offices all over Sydney or if you’d prefer we can arrange a video or telephone conference for you at your convenience. We are one of the top three family law firms in Sydney and have been for the last five years running.

Our expert team of family lawyers are available for a first Free Consultation on 1300 667 461.

Tania Sakla - Family Lawyer
Tania Sakla - Family Lawyer

Tania is an experienced and passionate family lawyer. At the core of Tania’s approach to family law matters is the aspiration to preserve relationships and to avoid dragging her client’s through a drawn out and emotionally tolling family law dispute. Where she can, Tania will always attempt to resolve her client’s matter through settlement negotiations without compromising her client’s rights and entitlements under the law.