Appeals and grounds for appeal family law is an important subject matter. Family law appeals are procedures through which a party requests higher authorities to review a lower court’s decision.
In family law, the appellant (person making the appeal) asks the appeal court to set aside the Federal Circuit and Family Court’s decision. Most importantly, an appeal cannot be understood as a simple “rehearing” of the dispute.
The appellant has to prove that the primary judge (or trial judge) made an error in decision. They should be able to justify the reasons for making an appeal. This is where grounds for appeal in family law become important.
In this article, we will discuss important aspects related to appeals including grounds for appeal in family law.
Appeal Process In Family Law
Before we explore grounds for appeal in family law, let us consider the overall procedure to file an appeal. In this section we discuss the steps that an appellant needs to take in order to make an appeal.
Firstly, the appellant will file a Notice of Appeal . The appellant must sign this Notice of Appeal within a specific time period. In Australian family law, the appellant must sign the Notice of Appeal within 28 days since the primary judge made the final order, or interim order.
Following this, the appellant needs to Serve the Notice of Appeal to other parties involved in the family law matter. In some cases, the court appoints an Independent Children’s Lawyer (ICL). If so, the appellant will need to serve the notice to the ICL as well.
How does the appellant serve the notice of appeal? He/she is required to provide copies to each party involved. Additionally, he/she will need to procure transcripts of proceedings.
The third step involves the appellant filing a draft index to appeal books. In this step, the appellant needs to include crucial information and documents that the parties presented before the primary judged during the original hearing of the matter.
Some examples of documents that contain this crucial information include:
- Subpoenas;
- Reports; and
- Affidavits.
Following this step, the appellant’s appeal will get listed for a procedural hearing.
Grounds For Appeal Family Law
An appellant cannot file an appeal against a decision simply because he/she is unhappy with the outcome. He/she must have suffered from serious miscarriage of justice. There are certain grounds for appeal in family law, as listed below:
The judge:
- Made a decision that was wrong, leading to injustice;
- Did not consider all relevant evidence to make a decision;
- Failed to provide procedural fairness to one or more involved parties;
- Gave inadequate reasons for their decisions and judgement;
- Acted in a way that was biased;
- Made decisions that led to the denial of natural justice.
Importance Of Knowing Grounds For Appeal Family Law: Success Rate Of Appeals
You must be wondering why there is such a thing as “grounds for appeals” in family law. This is because, as briefly mentioned above, you cannot file an appeal simply because you are unhappy with the judge’s decision.
There must be a genuine issue with justice, or bias if you are considering to file an appeal. This is why you must familiarise yourself with the grounds for appeal in family law. If you have been affected seriously due to an error made by the judge, you can proceed with the appeal procedures.
Moreover, it is advisable to check your chances to be successful with your appeal. This depends completely on your ability to persuade the Full Court that the primary judge indeed committed an error.
Ideally, the appellant must seek legal advice within 28 days before filing the Notice of Appeal. In these 28 days their family lawyers can provide legal advice so they can plan out their case properly.
Depending on how the appeal case proceeds, there are several possible outcomes, such as:
- The Full Court is satisfied that the primary judge made an error, but accepts the final order and conclusion as fair and just and thereby dismisses the appeal.
- It makes orders for another hearing to be arranged, in some cases a retrial to be headed by the same primary judge or a different judge altogether.
- The Full Court hears the appeal and makes a different order compared to the one that the primary/trial judge made during the original hearing.
Section 47C of the Family Law Act (1975) provides information about courts dismissing appeals. You can also read a simplified version of this Section of the Act on our blog.
Costs Involved With Family Law Appeals
The appellant will incur all costs when he/she decides to make an appeal. The Notice of Appeal costs around $1500. Moreover, the appellant will pay the costs to obtain transcripts of court proceedings, filing copies and serving notices.
Depending on the outcome of the case, the appellant may or may not be required to pay legal costs of the other party.
Because filing an appeal can be a costly affair, it is extremely important to first understand your chances of success. Family law appeals can be especially complicated because family law judgements are discretionary. This means that family court judges make decisions based on their discretion.
This makes it difficult for the appellant to prove that the judge made an “error” while making the decision or order. Although it is very uncommon for people to file an appeal, it is not necessary that the case will not be successful. If the grounds for appeal in family law matters are strong enough, the appeal can be successful.
Your Family Law Team
At JB Solicitors, we have a team of award-winning family lawyers who have the ability to provide tailored-advice to all clients. Our lawyers have the experience of dealing with various family law matters, including family law appeals.
This could be for appeals related to property settlement orders, parenting and child custody orders, or other contentious matters. Regardless of the type of family law issue you have, our lawyers are experts in the field with years of experience under their belt.
Contact our friendly team for more information.
