People use a family court appeal if they are unhappy with a court decision. Although, a family court appeal is not a re-hearing of the matter. Appellants will need to convince a High Court that the Lower Court made a mistake in their hearing.
Family court trials are procedures that involve a claimant presenting evidence in front of a judge. In this case, the Federal Circuit and Family Court of Australia (FCFCOA) handle family law cases. Moreover, this court helps families decide on agreements about parenting and property disputes.
One cannot simply make a family court appeal without proper guidance and legal advice. Thus, appellants will require an experienced team of solicitors who can help them with the family court appeal process. We will discuss a family court appeal in this article, and ways in which solicitors can help.
Who Can Handle A Family Court Appeal In NSW
What is the highest court in New South Wales? The NSW Court of Appeal is the highest and final court of appeal. Furthermore, this court is the highest court for civil matters and they possess appellate jurisdiction in NSW. Also, this court includes hearing appeals from judges of the NSW Supreme Court and any other NSW Court or Tribunal.
Appellants must take precautions when they wish to make a family court appeal in the NSW Court of Appeal. Consequently, this may result in expensive and complex procedures. Importantly, appellants can apply to the High Court for special leave to appeal the decision once more.
Error Of Law
An “error of law” is the act of a judge applying the wrong rule or “legal standard” to someone’s case. For instance, let’s suppose the judge made a mistake in his/her ruling. This may result in making a new decision about the case. Generally, high courts will believe a lower court’s decision, so appellants must present credible evidence to convince the high courts.
As mentioned, a family court appeal is not a chance for an appellant to restart or redo their court hearing. Moreover, these appeals should be based on a judge’s unjust decisions. A judge making an “error of law” can be the strongest reason for a family court appeal. Appellants can file an appeal if the judge:
- Failed to recognise or consider some pieces of evidence;
- Made a decision that was unjust, unfair, or flat-out wrong;
- Failed to give procedural fairness to one or more parties;
- Gave inadequate reasons for their decision; or
- There was a denial of justice.
The Family Court Appeal Process
- Firstly, appellants should file a Notice Of Appeal within 28 days. Also, they should pay the filing fees needed to file a Notice Of Appeal. Click here to see the FCFCOA’s updated fees.
- Secondly, the Notice of Appeal and a summary of the argument will be supplied to the other parties which may include a/an:
- Independent Children’s Lawyer (ICL)
- List of authorities
- Next, the other party may lodge a cross-appeal within 14 days of being served with the Notice of Appeal. They can also lodge a cross-appeal within 28 days of the appellant appealing the decision.
- Then, the prepared index must be presented to the appeal books within 28 days after the application date. The prepared index may include a subpoena which is a written order that compels an individual to give testimony. Failure to respond within this time frame will result in the Full Court dismissing the appeal. A full court is a court with more than the usual number of judges present.
- Finally, following the lodged draft index, the appeal will receive a procedural hearing from three judges of the Family Court. However, the Chief Justice may make a rule that a single judge may hear the case.
The court will then review the appeal and make its own judgement. Successful appeals will require a judge to be convinced beyond a reasonable doubt that the lower court made an error. The Full Court handling an appeal hearing has the option to either:
- Make a new order;
- Order a fresh hearing or a retrial; or
- Validate the initial decision and revoke the appeal case.
A revoked case will likely result in the appellant paying the costs of the other party during the appeal. This usually happens if the appellant didn’t have enough evidence to support his/her appeal. Hence, it’s important to seek legal advice to increase the chance of a family court appeal’s success.
Tips Before Appealing a Decision
Determine The Grounds For Appeal
Indeed, it’s stressful and not desirable to be on the receiving end of an unfair court judgement. However, it’s good to know the grounds of an appeal for it to be successful. Appellants should make sure that a judge did not properly assess the evidence in the case that supported their verdict.
Pay Close Attention To Details
The process of appealing a decision can be complex and time-consuming. On top of application deadlines, appellants must make sure that the details they put in every step must be accurate. Missing critical details or failure to submit applications and documents on time may result in an appeal’s dismissal.
Understand Possible Outcomes
It’s nerve-racking to appeal a court decision even when appellants have credible evidence and documents to back up their appeal. Hence, it’s essential to foresee possible outcomes of a high court’s decision. An appellate court can make the following decisions for a family court appeal:
- Affirm – The court agrees with and upholds the decision of the lower court.
- Reverse – The court disagrees with the lower court’s decision and considers the appeal.
- Remand – The court returns the case to the lower court to consider new evidence or hold a new trial.
- Reverse and Remand – The court disagrees with the case results and sends them back for correction.
Appealing Your Case With JB Solicitors
Our family lawyers at JB Solicitors can assist clients wanting a successful appeal. With our experience, we can assist clients in conducting further reviews and fact-finding regarding your family law case. Also, we understand that not all clients have the costs to afford the whole appeal process.
While court procedures are costly for both parties, we offer mediation services for parties who want a civil agreement. Parties have been using mediation as a cost-effective way of dealing with family disputes and may prevent costly appeal procedures. Should matters still arise, our family lawyers can represent you in court.
Send a message to JB Solicitors today for family court appeal matters.