Section 47C Family Law Act involves dismissing an appeal if there is no reasonable prospect of success. This means that courts can dismiss an appeal if it has no chance of succeeding. An appeal is a process of asking a higher court to review a judge’s decision made in a lower court.
Clients usually file appeals if they think that a judge made a mistake. However, not all appeals are successful and it’s possible to dismiss them according to Section 47C Family Law Act. For instance, if the appeal is not strong or credible enough, with weak chances of success, family courts will dismiss the appeal. This article will discuss Section 47C Family Law Act and how appeals are made.
What To Consider Before Filing An Appeal
Clients will tend to wonder if their appeal has a chance of winning in court. Moreover, they may think that the penalty against them was not justified as there was not enough evidence to prove their guilt.
Before deciding to file an appeal one must consider whether:
They have a good and credible case to appeal
There’s a chance of getting a harsher penalty in the district court
They know what to put in a notice of appeal form
An appellant has 28 days to file an appeal from the date of the sentence. Next, the appellant will need to file it at the court that sentenced them along with payment of filing fees. Finally, it is best to seek a solicitor’s advice to have strong prospects of success.
Prospects Of Success
A prospect of success is generally the assumption made about an appellant’s chance of success in a dispute. Moreover, the prospect of success will depend on how well the appellant will pursue or defend their dispute. Courts and Tribunals usually handle these disputes.
Typically, a litigation lawyer takes the responsibility of increasing the prospects of success. These lawyers conduct a factual and legal analysis of an appellant’s case to assess potential outcomes. However, the outcome will still depend on the following:
The witnesses’ availability;
Potential costs;
Assessment of the opposition/other parties; and
How the court will receive the claim.
It’s important for an appellant to strategise with a litigation lawyer to predict the outcome of their case. Navigating the law is difficult and judges will consider a witness’s statements. Therefore, a strong claim may still require proper planning of a dispute strategy.
Importantly, the Legal Profession Uniform Law Application Act 2014 (NSW) states that law practices must not provide legal services on claims unless a legal practitioner believes that the appellant has reasonable prospects for success. Moreover, the practitioner must strongly believe that it’s possible to defend the claim.
Case Study From 2009
An example of reasonable prospects for success is the case of Archer and Archer (2009). The couple made consent orders on October 6, 2008, and the father appealed to set aside the orders. The interim consent orders allowed the father to spend time with his two children under a community organisation’s supervision. Supervised visitations are upheld for parents who are abusive.
Despite the different findings, it was found that both parties are capable of providing for the children. However, the mother still has difficulty supporting the father’s relationship with the children. The father’s appeal is limited to two matters.
The consent orders shouldn’t have been made. This is because the judge that made the orders did not consider the children’s best interests.
The Chief judge should not have heard the application. This is because of the Chief judge’s connection with the matter in the past.
In the end, there was no reasonable prospect of success to allow the father’s appeal. While the father claimed that the outcome was unfair, the judge clearly explained the process of the order to him. Ultimately, the father agreed to the terms of the initial order.
FAMILY LAW ACT 1975 – SECT 47C
Appeal may be dismissed if no reasonable prospect of success
(1) If:
(a) an appeal has been instituted in a court under this Division; and
(b) it appears to the court that the appeal has no reasonable prospect of success;
the court may, at any time, order that the proceedings on the appeal be dismissed.
(2) This section does not limit any powers that the court has apart from this section.
How Can JB Solicitors Help?
Indeed, a person may feel worried and distressed about his/her dismissed appeal. However, an appellant can still seek mediation with the other party for a lighter penalty. Our mediation services at JB Solicitors can help both parties in reaching an agreement on their benefits. Should the matters escalate, our family solicitors can step in and represent parties in court.
Contact our family lawyers today.
