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Family Law Appeals Post Medlow & Medlow

Written by Serena Vos

Serena Vos holds a Bachelor of Laws and a Bachelor of Arts (Criminology) with Honours. Since being admitted to the Supreme Court of Victoria and the High Court of Australia, Serena has practised primarily in family law. Serena is experienced in all aspects of Family Law including divorce, de facto relationships, parenting, property settlements and binding financial agreements. Serena represents married and de facto clients in the Federal Circuit Court and the Family Court. She also has experience representing clients for Personal Safety and Family Violence Intervention Orders in the Magistrates’ Court.

Family law appeals are relatively uncommon. However, appeals are a vital part of the legal system to ensure that matters are decided according to the law and that judges exercise their discretion appropriately. An appeal may be the only means to seek to remedy an unfavourable judgment. For those with an unfavourable interim result, an appeal may be the way to direct their litigation back on a more favourable path.

Grounds for appeal

There are eight common grounds of appeal argued in family law matters. These are:

(1) The learned trial judge acted upon a wrong principle.
(2) The learned trial judge took into account irrelevant matters;
(3) The learned trial judge erred on the facts.
(4) The learned trial judge failed to take into account a material consideration.
(5) The learned trial judge’s decision was plainly unreasonable or unjust;
(6) The learned trial judge was biased.
(7) The learned trial judge failed to afford a party procedural fairness.
(8) The learned trial judge provided inadequate reasons.

How to commence an appeal

If you decide to appeal the decision of a first instance judge, you must file a Notice of Appeal within 28 days of the decision. Filing a Notice of Appeal does not automatically suspend the orders made by the first instance judge. Parties must obey the orders made, even if you have filed an appeal.

Leave to appeal

If you do not file your Notice of Appeal within 28 days of the decision, you must seek leave to appeal from the court. The requirements for leave to appeal were set out in the matter of Rutherford, where the appellant was required to demonstrate there was either:

(a) an error of principle; or
(b) a substantial injustice.

Medlow & Medlow

The requirements for leave to appeal were tightened following a decision by the Full Court of the Family Court in 2016. In the matter of Medlow & Medlow the requirements an appellant must be able to demonstrate both:

(a) That the first instance decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and
(b) That substantial injustice would result if leave were refused, supposing the decision to be wrong.

The Full Court adopted this test on the following four bases:

1. It brings uniformity to the Appeal Divisions of the Family Court and the Federal Court.
2. Second, there are many cases where a judge has expressed themselves in a way that constitutes an ‘error of principle’, but nonetheless they have reached an appropriate result.
3. Third, it supports the policy consideration that the court’s time and resources should not be spent on appeals which do not ultimately determine the rights of the parties.
4. The test maintains focus on the principal issue of whether the decision will be reversed if the appeal succeeds.

Why are family law appeals uncommon?

Success in family law appeals is difficult for the appellant and therefore it is understandable that the appeal process is not more regularly utilised. There is a strong presumption in favour of the correctness of the first instance decision and that the first instance decision should be affirmed unless the court of appeal is satisfied that it is clearly wrong.

A decision will not simply be set aside by a court of appeal just because the Appeal Division judges would have come to a different result than the first instance judge. Rather, an appellant must be able to demonstrate that there was an error by the judge which makes the judgment unsafe to such a degree that it should be set aside.

Limitations of family law appeals

It is also important to be aware of the limitations of family law appeals. Appeals are by nature difficult to win. The Appeal Division judges hold the presumption that the first instance judgment is correct. It is the task of the appellant to rebut this presumption within strict principles. Of significant importance is the understanding that an appeal is not a ‘second bite at the cherry’. There is generally no opportunity for fresh evidence to be heard, but rather the material to be put to the court is strictly limited to questions of law. Appeals are different to first instance proceedings because technical legal arguments prevail over issues of fact.

There are also lengthy wait times in relation to the Appeal Division. It is not uncommon for an appeal matter to take 12 months from the date of filing to be finalised. This must be considered when appealing from an interim decision, as it may be that the final hearing for the substantive matter will be heard before or at a similar time to the appeal.

As in all matters, it is crucial to engage legal representation at the earliest opportunity when considering making an appeal. From the stage of drawing up the Notice of Appeal onwards, appeals are greatly assisted by Family Law solicitors, and often by counsel, who can devise and develop the case theory and structure the arguments to be run at the appeal.

If you require legal advice or representation in a family law matter or in any other legal matter please contact Go To Court Lawyers.

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