An appeal is a request to either a single judge or the Full Court of the Family Court asking for a previously made decision to be set aside and a new decision to be made. Only some decisions of a Family Court or Federal Circuit Court judge can be appealed. We are experts at determining which decisions can be appealed and your likelihood of success. An appeal is not a rehearing of the original dispute. For an appeal to succeed you must convince the Family Court appeal judge or judges that a legal error was made. If you require assistance relating to an appeal please contact us immediately. There are strict time limits that apply to appeals, the first being a 28-day time limit to file an appeal notice. The time period starts from the day an order is made by the Family Court or the Federal Circuit Court judge.
It is important to note that filing an appeal does not stop the operation of the order being appealed (except where the order is a divorce order). Both you and the other party must obey the orders made by the judge. If you want to stop the operation of the orders until your appeal is decided we can assist you. The process involves filing an Application in a Case together with an affidavit.
Generally, appeals are listed for hearing before the Full Court (three judges of the Family Court). The Chief Justice of the Family Court may direct that an appeal from a Federal Circuit Court judge be heard by a single judge rather than before the Full Court. There is no right to appeal against this decision.
General Information Relating to Appeals
The Appeals Court does not generally consider any evidence or information that was not before the original judge except in special circumstances. This includes oral evidence from old or new witnesses.
All the relevant documents that were filed by the parties for the hearing before the original judge and the relevant parts of the transcript of the proceedings are taken into account as are the written summaries of argument each party must submit to the Court. Legal argument from both sides are considered. It is the appellant who must convince the Appeals Court that the Federal Circuit Court or Family Court Judge made an error such that the decision should be set aside.
To set aside a decision the Appeal Court must be convinced that:
- A wrong principle of law was applied; or
- A finding of fact or facts on an important issue was made, which could not be supported by the evidence; or
- There was an exercise of discretion to arrive at a decision which was clearly wrong.
A finding of fact is, for example, a finding that a certain event did or did not occur, that something was said or not said, or that something has a certain value (for example, a property or vehicle). An exercise of discretion occurs when the result of a case does not depend on a fixed rule, but where the judge has to weigh up a number of different factors, all of which are of some relevance to the decision to be made. To succeed on appeal, it is not enough to argue that another judge might have formed a different view on the facts or decided the case differently. Usually, if the original judge accepted the evidence of one party in preference to that of the other party, the Appeal Court will be reluctant to take a different view because, unlike the original judge, the Appeal Court does not see and hear the parties or their witnesses giving evidence.
Appeals on Interim or Procedural Orders
Permission or leave is required to appeal against a Federal Circuit Court or Family Court judge’s decision if it relates to an interim or procedural order but not to a parenting or final order; for example, an order stopping you from accessing money in a bank account until further order. Leave is also required to challenge an order made under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
Possible Outcome of Appeals
If your appeal is successful the Appeal Court may:
- Make a different order to the one made by the original judge; or
- Order a retrial (that is, another hearing); or
- It is also possible for the Appeal Court to find that, although the original judge made some errors, he or she came to the correct conclusion and the appeal should be dismissed.
Costs Related to Appeals
We can advise you on the most cost effective approach to appealing. There are significant costs related to appeals. They include:
- A filing fee (in some cases a reduced fee may be sought for a divorce application, or decree of nullity, or in respect of other fees, an exemption if you hold certain government concession cards or you can demonstrate financial hardship). We can advise relating to this.
- The cost of a transcript of the proceedings. Each appellant buys transcripts at their own cost. There is no fee reduction applicable to this charge.
- If your appeal is unsuccessful, it is likely that the Appeals Court will order you to pay some or all of the other costs of all other parties to the appeal.
You should contact us immediately if you are deciding whether to appeal an order of the Federal Circuit Court or the Family Court. We can help you understand your legal rights and responsibilities, and explain how the law applies to your case. Contact our Principal Mr Glenn Thexton now on 0410 639 921.