If you believe a family court decision was legally wrong or involved a significant error, you may have the right to appeal. Appeals in family law are heard by the Appeal Division of the Federal Circuit and Family Court of Australia (Division 1). An appeal is not a re-hearing of your case; rather, it is a review of whether the original judge made an error that affected the outcome.
Grounds for Appeal
An appeal is not an opportunity to simply re-argue your case or present new evidence. To succeed on appeal, you must establish that the original decision involved a legal error. Common grounds for appeal include:
- Error of law: The judge misinterpreted or misapplied the relevant legislation or legal principles
- Error of fact: The judge made a finding of fact that was not supported by the evidence or was plainly wrong
- Procedural unfairness: A party was denied a fair hearing, for example by not being given adequate opportunity to present their case
- Discretionary error: The judge exercised their discretion in a way that was unreasonable or took into account irrelevant considerations
- Failure to consider relevant matters: The judge failed to take into account a significant factor required by the legislation
Simply disagreeing with the outcome is not a ground for appeal. The appeal court gives significant weight to the original judge's findings, particularly on matters of witness credibility.
Time Limits and the Appeal Process
Strict time limits apply to family law appeals. You must generally file a notice of appeal within 28 days of the date the orders were made. The appeal process involves several steps:
- Obtain the reasons for judgment: If the judge delivered an ex tempore (oral) judgment, you will need to obtain a transcript. Review the reasons carefully with your lawyer to identify potential grounds for appeal.
- File a notice of appeal: The notice of appeal must specify the grounds on which the appeal is brought and the orders sought from the appeal court.
- Prepare the appeal books: The appeal court requires a compilation of the relevant documents, evidence, and transcript from the original hearing.
- Written submissions: Both parties file detailed written submissions setting out their legal arguments.
- The appeal hearing: The appeal is heard by a panel of three judges (a Full Court). The hearing is based primarily on legal argument rather than witness evidence.
Stay of Orders Pending Appeal
Filing an appeal does not automatically suspend the original orders. If you want the orders to be put on hold while the appeal is heard, you must apply for a stay of the orders. The court will consider factors such as:
- Whether there are arguable grounds for appeal
- Whether the appellant would suffer irreparable harm if the orders were not stayed
- The balance of convenience between the parties
- The best interests of any children affected by the orders
Realistic Advice on Your Prospects
Appeals in family law are difficult to win. The appeal court is reluctant to interfere with the discretionary decisions of trial judges, particularly in parenting matters where the original judge had the advantage of seeing and hearing the witnesses. At Reid+Alexander Lawyers, we provide honest, realistic advice about your prospects of success before you commit to the cost and time involved in an appeal.
"An appeal should only be pursued where there is a genuine legal error that materially affected the outcome. We will tell you candidly whether your case warrants an appeal."
If you have received a family court decision that you believe is wrong, time is critical. Contact us immediately to discuss your appeal options.