Section 47B of the Family Law Act 1975 states the leave to appeal needed for child support matters. Permission granted to appeal against a court decision defines the leave to appeal. Parties desiring to appeal a court ruling to the High Court of Australia must submit a special leave application.
You cannot appeal a court’s decision simply because you are unhappy with the outcome. The trial judge must have made an error that serves as a ground for your appeal. A ground means a cause or a basis.
Usually, you must also have pointed out that error to the trial judge in a court trial. This is called “preserving your record”. This blog will discuss Section 47B of the Family Law Act.
Section 47B Family Law Act: What Is An “Error Of Law”?
An “error of law” generally means that the judge applied the wrong rule or legal standard to a case. This can occur if a trial court did not follow statutes or laws in resolving a case. In child support matters, a judge must determine what is in the child’s best interests.
Most state laws set forth certain factors that consider the child’s best interests. For example, a judge might have ignored evidence in calculating child support. This can affect the amount that each parent might contribute for child support. This means that a parent may have grounds to appeal based on an “error of law”.
An error of law is the strongest type of leave to appeal. This is because the appellate court reviewing the case doesn’t give weight to what the trial court judge did. The appellate court will look at the law that was supposed to apply to the case. Also, the appellate court will decide whether or not the trial judge made a mistake.
Child support matters involve the judge finding facts. As the “fact-finder” the judge will review evidence and decide whether certain facts have been proven. The trial judge has the opportunity to directly see evidence through witness testimony and documents. Because of this most appellate courts will rarely second guess a judge’s factual findings.
Judicial Discretion
A trial judge has a great deal of power and judgement in making decisions for a case. Examples of this extensive authority, known as “judicial discretion,” include deciding what evidence to accept at trial. This power includes granting a motion or request made by a party.
Additionally, it grants a protection order or approves a proposed settlement agreement. Appellate courts respect the trial court judge’s judicial discretion because they believe that trial judges are best for this position. In general, an appellate court will go along with a trial court judge’s discretion.
A sufficient ground for appeal is not enough when a judge makes an error in this discretion. This is unless an appellant can prove that the judge “abused” this discretion. In these types of cases, there may be evidence brought at trial that clearly doesn’t support the judge’s decision. The appellant can then file a leave to appeal to counter the judge’s unreasonable decision.
How To File A Leave To Appeal
Usually, there’s only a short amount of time to file a leave to appeal after the judge issues orders. Firstly, you must file a Notice of Appeal within the time frame that the state requires. The time limit will vary by state and what type of case you want to appeal.
Most states require the submission of a notice of appeal within 30 days after the date of the final trial. After filing, there are other documents and/or further procedures that have their own respective deadlines. You should contact a solicitor to know these steps and deadlines stated in Section 47B of the Family Law Act.
