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Family Law Appeals

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Family law appeals are relatively uncommon. There are several reasons for this. Firstly, family law judgements are discretionary. This means that unlike in some areas of law, where there is a single correct decision that the court should arrive at if it properly considers the evidence and applies relevant legal principles, family law judges have quite a lot of leeway in terms of the decision they are allowed to make. This can make it hard to prove that a decision was made in error. Secondly, a lot of people who go through family law proceedings are self-represented and lack the technical knowledge to run an appeal. However, roughly half of the family law appeals that are proceeded with in Australia are successful. So when should you file a family law appeal?

Should I appeal?

Family law appeals are not a chance to have all the evidence and submissions made in a hearing considered again. They should be based on an error by the judge that is so serious that it amounted to a miscarriage of justice. It is not enough that you don’t like the decision or that another decision would have been better. If you think that the judge made a serious error, you should consider appealing.

Common grounds of appeal

The most commonly argued grounds in family law appeals are:

  • The judge failed to properly consider the evidence;
  • The judge made a decision that was plainly wrong;
  • The judge failed to accord procedural fairness;
  • There was a denial of natural justice;
  • The judge gave inadequate reasons for the decision;
  • The judge was biased.

How to commence an appeal

If you decide to appeal, you must file your Notice of Appeal within 28 days of the decision. There is a filing fee for a Notice of Appeal which currently stands at $1360. Within 14 days of filing a Notice of Appeal, you must serve the Notice of Appeal on all other parties.

You will need to get a transcript of the proceeding and you will have to pay for this yourself (the cost depends on the length of the proceeding). It’s important to note that filing an appeal does not suspend the orders. To do this, you will need to make a separate application for a stay on their operation.

What happens after filing a Notice of Appeal

Within 28 days of filing a Notice of Appeal, you must file a draft index to the appeal books. The draft index lists all the documents you think should be included in the appeal books. This is generally all the documents that were before the judge who made the original decision, such as affidavits, reports and subpoenaed material. If no draft index is filed, the appeal is taken to have been abandoned. After a draft index has been filed, the appeal is listed for a procedural hearing. On this day, orders will be made for the preparation of the appeal and deadlines will be set for the filing of any necessary documents.

Who hears family law appeals?

Appeals against decisions by a judge of the Family Court or a judge of the Federal Circuit Court are made to the Full Court of the Family Court. The Full Court consist of three Family Court judges. The Chief Justice may order that an appeal against a Federal Circuit Court decision be heard by a single judge if this is appropriate. In practice, the majority of family law appeals are heard by a single judge.

Is my appeal likely to succeed?

It’s a good idea to get a legal opinion as to the prospects of your appeal at as early a stage as possible to avoid wasting time and money on an argument that is unlikely to succeed. If you cannot get a legal opinion within 28 days of the decision, you should file a Notice of Appeal to reserve your right to pursue an appeal if you decide to do so. If you subsequently receive advice that the appeal has low prospects of success, you can abandon the appeal.

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

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