If someone wishes to appeal family court decision, it means that they wish to review a family court order. Notably, if you appeal family court decision, it does not mean that the original matter will be reheard in court.
In fact, appeal family court decision means that the party wishes to set aside the Federal Circuit and Family Court of Australia’s decision.
The judge who makes a hearing at the Family Court is the primary judge or trial judge. To appeal family court decision, the applicant has to show that the primary judge has made an error.
You cannot appeal family court decision merely because you feel it is a bad decision, and because it is affecting you personally. There must be reasonable grounds to appeal family court decision.
The Full Court will hear appeals. The Full Court will not rehear the case, and therefore it will not call any witnesses to present evidence. Moreover, the Full Court will not consider any new information. However, it may consider new information in special circumstances.
In case of absence of reasonable grounds to appeal, the Full Court will dismiss the appeal. This can be a waste of time and money for the appellant. Therefore, it is important to be fully aware of the various reasons to appeal.
Moreover, if the appellant truly and genuine believes that the judge has made an error, leading to a miscarriage of justice, the appellant should build a strong appeal case accordingly.
Why Do People Appeal Family Court Decision?
As mentioned above, an appellant (person filing an appeal) cannot appeal family court decision because they feel it is affecting them negatively. They need a valid reason to appeal.
The reasons can be in cases where the judge:
- Made a decision that was wrong;
- Did not take into consideration procedural fairness;
- Provided inadequate or insufficient reasons for the final decision;
- Did not take all the evidence into consideration;
- Made decisions that were biased.
Moreover, if the appellant has experienced a denial of justice, he/she may wish to make an appeal.
How To Appeal Family Court Decision?
First and foremost, the appellant will need to sign a Notice of Appeal. The appellant needs to sign this Notice of Appeal within 28 days from the day the court made the interim or final decision.
Secondly, the appellant will be required to Serve the Notice of Appeal to the other parties. The appellant needs to serve the notice within 14 days. He/she needs to serve this notice to all other parties involved.
In case of family law matters where the Court appointed an Independent Children’s Lawyer (ICL), the appellant will need to serve the notice to the ICL also.
To do so, the appellant must provide copies of the notice of appeal to all parties. Moreover, the appellant will need to gather transcripts of proceedings before the judicial officer.
Thirdly, the appellant needs to file a draft index to the appeal books. This includes crucial information and documents that the involved parties presented before the primary judge during the original hearing.
These documents can include subpoenas, affidavits and reports, among others. Once the appellant completes the third step, their appeal gets listed for a procedural court hearing.
Potential Outcomes
If the appellant is able to convince the Full Court that the trial or primary judge made some error, the appellant can expect a successful outcome.
Notably, appellants should obtain legal advice after filing the Notice of Appeal. This can help them build their case in the meantime.
If the appeal application is successful, the Court can make a new order. On the other hand, if the appeal application is unsuccessful, the Court will dismiss the appeal. The appellant will need to pay either some or all of the costs for the other party.
Given below is the list of potential outcomes:
- The Full Court may make a different order. This order will differ from the primary judge’s order.
- It may make an order for a rehearing. This hearing can be arranged with the same primary judge, or with another judge.
- The Full Court may consider that the Primary Judge made an error in making the judgement. However, it is still convinced that the overall outcome of judgement was accurate, and thereby dismiss the appeal.
Costs Associated With Appeals
The appellant should make a note of all costs that will be associated to appeal family court decision. The costs include:
- Filing fees – currently around $1360
- Fees to buy transcripts of proceedings before the primary judge
In case of unsuccessful appeal applications, the appellant may incur additional costs. This is because the Court may order the appellant to pay some or all of the other party’s costs.
Case Study Example
In the case of Bakal & Kapicic (Appeal) [2017] FamCAFC 102, the appellant (Ms Bakal), appealed against parenting and property orders.
She appealed against property orders by citing following reasons:
- The trial judge did not provide adequate reasons for the order
- He did not give weight to the other party’s failure to make a full and frank disclosure of assets
However, the appeal was dismissed because the trial judge’s reasons were considered to be sufficient and adequate (although brief) enough to make the court orders.
How Can Family Lawyers Help?
Family lawyers possess the right knowledge to help you navigate through appeal cases. If you wish to make an appeal, it is highly likely that you have suffered due to miscarriage of justice.
If you strongly believe that the judge made an error because he/she overlooked some significant information, you should making an appeal.
Family court orders can have long-term impacts on a person’s life. For example, court orders about custody matters or other parenting matters can have severe affects on a person’s life.
These orders affect all the parties involved in a given family law matter. Family lawyers can help the appellant with gathering all necessary documents to file the application.
At JB Solicitors, our family lawyers have a wealth of experience in dealing with different family law matters.
Contact us today for more information.
