Key Takeaways:
- You cannot appeal a decision made by the Court just because you do not agree with it or do not like it – you must have grounds to make a family law appeal.
- The grounds for making an appeal are related to there being an error of law, where the law has not been applied to the situation correctly, or there being an error of fact where perhaps not all of the evidence was considered.
- It’s important to understand the process of appealing a family law decision as there are time limits that must be adhered
- A successful family law appeal could result in court orders being set aside, new orders being made, or a rehearing of the matter.
Family law matters can be resolved in many different ways.
Sometimes the people involved can figure out a solution by themselves. Sometimes they need the help of a third party, like a mediator to find a suitable outcome. And sometimes they need to go through Court proceedings to resolve their matter.
While in many cases, the decision of the Court is final, sometimes the decision of the Court is not right, and in those circumstances, you may be able to submit an appeal.
A family law appeal involves a review of the decision that was made by the Court and can only occur when there are suitable grounds for an appeal.
In this article, we’ll provide you with some more information about family law appeals, including when they can be made, how to make a family law appeal, and how a family lawyer can help you.
What is a family law appeal?
When a family law matter, such as parenting arrangements or how property should be divided after a separation or divorce, cannot be resolved between the parties, they can go through family law proceedings in the Court to have a decision be made for them by a judge.
It’s possible that a decision by a judge has been made in error. If a party involved in the matter believes that this is the case (and has evidence to support this), they can, according to the Part 5 Division 4 of the Family Law Act, make an appeal of the decision.
The appeal is a legal process where a review of the decision (court order) made by the judge is conducted by a higher court. In most cases, the aim of the appeal is to have the decision the judge made set aside and new orders made.
It’s important to note that a family law appeal does not involve having your case reheard from the start, rather the decision that was made needs to be reviewed.
When can you appeal a Court decision?
In order to be able to appeal a decision made by the Federal Circuit and Family Court of Australia, you must have reasonable grounds to make the appeal.
The grounds for a family law appeal are centred around there being an error of law, where the law has not been applied correctly, or there was an error of fact and not all of the evidence for the matter was considered when making the decision.
Some examples of grounds for appeal include:
- The judge made a decision that was wrong;
- The judge did not give adequate reason for their decision
- The judge did not properly consider all of the available evidence
- The decision is unreasonable or unjust
- Procedural fairness was not applied by the judge
- The judge was biased
Understanding the grounds for your family law appeal is extremely important because attempting to appeal a court’s decision without proper grounds can be a costly exercise both financially and time wise.
You won’t always agree with the court’s decision in a family law matter, however, just because you don’t like the decision, you don’t agree with the decision or you believe that there a better decision could be made, it doesn’t mean you can appeal the decision.
A family lawyer can help to determine whether you have the proper grounds to appeal a family law decision.
It’s also important to note that you may be required to apply for leave to appeal a case, which is essentially seeking permission to be able to file an appeal. Leave to appeal can be complex and is another reason why talking to a family lawyer first is ideal.
How do you appeal a Federal Circuit and Family Court decision?
As we talked about above, having proper grounds to appeal a family law decision is important, so before you take any of the following steps, we highly recommend that you discuss your situation with a family lawyer first.
If you have determined that you have grounds to make an appeal, then you will need to take the following steps.
Step 1: File a Notice of Appeal
It’s important to act fast when it comes to appealing family law decisions because you can only make an appeal within a limited period of time.
You must take action by filing a Notice of Appeal within 28 days of the court decision. The Notice of Appeal needs to be filed with the national appeal registry in the relevant location. There are costs to file the Notice of Appeal, and up to date filing fee information can be found here.
Step 2: Serve the Notice of Appeal to the other parties
The person filing the family law appeal, known as the appellant, must serve the Notice of Appeal to the other parties involved within 14 days of filing the Notice of Appeal.
The other parties do have the right to lodge a cross appeal to your appeal.
Step 3: Draft index to the appeal books
From the date of filing the Notice of Appeal, you have 28 days to file a draft index to the appeal books. A draft index outlines all of the documents that the person making the appeal thinks should be included in the appeal books.
Completing this step is vital because if it doesn’t happen within the time frame, it will be assumed that your appeal has been abandoned.
Step 4: Procedural hearing
Once the draft index has been filed, the appeal will be listed for a procedural hearing. During the hearing, which is known as a procedural hearing, orders will be made about how documents and information must be prepared for the appeal hearing.
Among these documents, a copy of the transcript from the original case will be required. This is usually the responsibility of the appellant; however, this will be determined during the procedural hearing.
Step 5: Appeal hearing
During the family law appeal hearing, the person making the appeal and the other party will be able to provide information and their arguments to the judge and they will do so by directing the attention of the judge to the parts of the appeal book that supports their argument.
The judge will make a decision which may be immediately provided or provided after a period of time – usually no later than 3 months after the appeal hearing.
For more information on the family law appeal process, see our guide here.
What is considered during the appeal hearing?
The aim of the appeal hearing is for the person making the appeal to be able to clearly demonstrate that a mistake was made when the original decision was made.
This could include providing evidence that supports that the judge applied the wrong principle of law, that they did not take into account some relevant information, or that they made a finding of fact that was not supported by the evidence.
The judge presiding over the appeal hearing will take information that was provided during the original case, as well as the Notice of Appeal, reasons for the original judgement, the documents in the appeal book, the transcript of the original case and the oral arguments of the parties involved regarding the appeal into consideration during the appeal hearing.
The appeal is not a rehearing of the case, so unless there are exceptional circumstances, the judge will not consider any evidence that is new and was not before the primary judge.
Who hears a family law appeal?
A family law appeal may be heard by a single judge or the full court and this is dependent on the Court division that the matter was originally heard in.
There are 2 divisions of the Federal Circuit and Family Court of Australia. Division 1 is a continuation of the Family Court of Australia and deals with family law matters, while Division 2 is a continuation of the Federal Circuit Court of Australia and deals with family law, migration, and general federal law matters.
If your matter was originally heard in Division 1 of the Court or a judge of the Family Court of Western Australia, the appeal will be heard by the Full Court. The Full Court refers to 3 judges who will hear the appeal together.
If your matter was originally heard in Division 2 of the Court or by a Family Law Magistrate in the Family Court of Western Australia, the appeal will be heard by a single Judge. However, the Chief Justice could instruct that the appeal must be heard by the Full Court.
What happens when an appeal is successful?
When a family law appeal is successful, it means that the appellant has been able to provide evidence that shows that the original judge made an error when making their orders.
When this occurs the appeal hearing judge may do one of the following:
- Substitute or change the original decision with their own decision.
- Order a rehearing (also known as a retrial)
Whether your successful hearing will result in a rehearing or a new decision is dependent on the unique circumstances of your case, as well as the severity of the error that was made, if more evidence may be needed to ensure the trial is fair, and the amount of time that has passed since the original decision was made.
What if the appeal is not successful?
When an appeal is not successful, the Court will dismiss the appeal and, in many cases, the person who made the appeal will be required to pay the legal costs of the other party involved.
How likely is a family law appeal to be successful?
We can’t tell you if your appeal will be successful, however, as family lawyers, we can learn about your situation and determine whether you have legitimate grounds for appeal.
Having proper grounds for appeal is important to be able to make an appeal and the evidence you have to support this will also play a big part in whether your appeal is successful.
Family law matters are often intricate and complex, which is another reason why you should be talking to a family lawyer if you believe an incorrect decision has been made in your situation.
Does a family law appeal mean my current order is not valid?
Filing an appeal to a Court order does not mean that that Court order is not valid or is on hold while the appeal is happening.
You must still comply with the original order and must continue to comply with it after you’ve submitted your appeal and during the appeal hearing. If the judge makes a decision to set aside the original Court order in favour of a new order or a new trial, then you no longer need to comply with the Order.
If you do not comply with the original Orders it could result in serious legal ramifications.
Why do appeals matter?
While family law appeals are not overly common in Australia, the ability to be able to appeal the decision of the Court is extremely important.
The Australian family law system emphasises the importance of fair decisions, with many proposed outcomes being reviewed to ensure that they are just and equitable in nature. But mistakes can be made, and the outcome of family law matters can have lasting impacts on all parties involved.
So, ensuring there is a process in place review outcomes for fairness and justice is extremely important.
Do I need a lawyer to appeal a family law decision?
Technically you do not need a family lawyer to appeal a family law decision. However, while you don’t have to have one, it’s highly recommended that you do seek legal advice at the least.
The family law rules, and the appeal process can be complicated, you need to ensure you have supportive evidence and grounds to actually file an appeal which can be complicated without an intricate understanding of the family law system in Australia.
When you don’t cover all of your bases you run the risk of the appeal being dismissed, incurring financial costs, and losing your chance of true justice.
A family lawyer will use their experience and knowledge of the family law system to ensure that you have the right to lodge and appeal and can support you throughout the entire process too.
If you want to appeal a family law decision
If you’re involved in a family law matter or you believe that you may have the grounds to appeal a recent family law Court decision, get in touch with our specialist family lawyers here at Unified Lawyers.
Our team is well-versed in all areas of family law, including family law appeals. We can review your circumstances to ensure you have grounds to make an appeal, we can help you to prepare evidence for your matter, and we can provide legal advice and support throughout the entire process.
Our family law services are available Australia-wide and all day every day. Get in touch with us to arrange a free consultation by calling us on 1300 667 461 or using the button below.
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