The topic ‘Appeal Family Court decision’ is relevant to those who wish to review an order made by the Family Court. The appellant requests a higher authority to check the matter.
Appeal in Family Court does not mean that that the court will rehear the original matter. It is simply an opportunity for the party to request the appeal court to set aside the decision which had been made by the Federal Circuit and Family Court of Australia.
In doing so, the person making an appeal has to show that the judge from the original hearing – known as a primary judge or trial judge – has made an error.
In this article we will explore all topics related to appeal Family Court decisions. This includes common reasons why people wish to appeal Family Court decision. Moreover, we will look at steps that an appellant must complete to successfully appeal Family Court decisions.
What Is An Appeal?
As mentioned above, an appeal against Family Court decision does not mean that the court will rehear the entire case again. When making an appeal, appellants need to show the Full Court that the primary judge made an error and so the decision should be set aside.
During the appeal hearing, the Full Court will not:
- Call witnesses to present evidence;
- Consider information which was not presented before the primary judge (unless in special circumstances).
However the Full Court will hear legal arguments from both sides, and will consider written summaries of both arguments.
Appeal Family Court Decision: Common Reasons To Do So
When a person goes to appeal Family Court decision, he or she may cite one of the reasons listed below:
- The judge made a decision that was wrong;
- The judge did not consider all the evidence properly;
- The person appealing experienced a denial of justice;
- The judge did not take into consideration procedural fairness;
- The judge made biased decisions; or
- The judge provided inadequate reasons for the final decision.
When assessing whether or not you should appeal, it is important to remember that an appeal against family court cannot be made simply because you felt it was a bad decision which is affecting you personally.
Parties can make appeals only in cases where the judge has really made an extremely serious error resulting in miscarriage of justice.
Appeal Family Court Decision: What’s The Process
Firstly, if you have decided to appeal family court decision, you have to file a Notice Of Appeal. The Form 105 Notice of Appeal has to be signed within 28 days of the court’s decision. There are certain fees associated with filing a Notice of Appeal – the filing fees currently is $1360.
Notably, simply filing a Notice of Appeal does not lead to suspension of existing order.
Secondly, once the Notice of Appeal has been filed, you have to Serve the Notice of Appeal to the other parties. Other parties include all involved persons, including an Independent Children’s Lawyer if appointed. You have to serve the notice within 14 days.
The appellant must provide a copy of Notice of Appeal to all involved parties. They must serve the copy either via post or by hand.
Importantly, the will also require transcripts of the proceedings before the judicial officer. The appellant will need to make all payments for the transcripts.
Thirdly, the appellant will need to file a draft index to the appeal books. This will include all important documents that were presented before the primary judge in the original hearing of the matter, including:
- affidavits
- subpoenaed material
- reports
Once the appellant files the draft index, their appeal is listed for a procedural court hearing. All appeals against family court decisions made by judge of the Federal Circuit and Family Court of Australia are made to Division 1 of the FCFCA.
Division 1 of the FCFCA deals with family law matters, and has 35 specialist family law judges who hear both trials and appeals.
Will My Appeal Be Successful?
When appealing any court decisions, it is very important to get a legal opinion on the matter. Ideally, you should obtain legal advice within 28 days before you file a Notice of Appeal. Whether or not the appeal will be successful depends on if you are able to convince the Full Court that the primary judge indeed made some errors resulting in a miscarriage of justice.
Given below are the possible outcomes of an appeal:
- The Full Court may make a different order to the one that was made by the primary or trial judge.
- Order that another hearing be arranged, or that a retrial be held by the primary judge or even a different judge.
- The Full Court may also be satisfied that the primary judge made an error but the overall conclusion was correct and so the appeal should be dismissed.
In summary, if the application is successful, the Court will make a new order. If the application is not successful, the Court will dismiss the appeal, and the appellant may need to pay either some or all of the other party’s costs.
Importance Of Seeking Legal Advice
Before making an application for appeal, it is necessary for you to know your legal rights. Family lawyers at JB Solicitors will explain how the law applies to your particular case, and provide an outline about the matter. By assessing the matter, our lawyers can let you know whether or not appealing the decision will be suitable in your case.
Getting a legal opinion is important to avoid unwanted stress and expenses. Our family lawyers can provide tailored-advice and detail all the options available to you for your matter. Moreover, our lawyers can also give you all accurate information about any legal costs which you may incur should you decide to go ahead with making an appeal against Family Court decision.
Contact our experienced team of solicitors for any other enquiries, or to book a consultation.
