Family Law – Bad Decision – What Can You Do – Should An Appeal Be Filed

02/11/2018

The Family Court of Australia and the Federal Circuit Court of Australia make Orders in relation to Property and Parenting Applications.  Some parties can resolve their dispute by way of negotiation and consent.  Consent Orders can be made to the Family Court or Federal Circuit Court.  However if the parties do not settle their disputes, then on the Application of either party the Court will list the matter for hearing.  A Judge of the Court will decide the outcome at the hearing.

The matter will be prepared for hearing.  This will require evidence to be filed in relation to all matters in issue. Sometimes there can be agreement as to some issues for example, the value of the matrimonial home or a business.  The evidence relating to the matters when agreement has not been reached will be by way of Affidavit and supporting documents and opinions must comply with the rules relating to the giving of evidence.

The legal representatives of each of the parties will make submissions and tender documents. The parties and their witnesses in the proceedings will be examined and cross-examined.  The Judge will then make a decision.

Not all parties to proceedings are necessarily happy with the decision that the Judge has made.  Not all decisions made by a Judge are correct.  A decision of a Judge can be reviewed.  This review process is called an Appeal.

A party to proceedings can appeal a decision of a Judge of the Family Court of Australia or the Federal Circuit of Australia.  Appeals from a decision of the Family Court of Australia are considered by the Full Family Court of Australia.  An appeal from a Judge of the Federal Circuit of Australia is considered by a Judge of the Family Court.

A party dissatisfied with a decision of the Court has a right to appeal.  The Family Law Act and the Rules provide that an appeal can proceed and most importantly, imposes time limitations on when and how an appeal can be made.

Interlocutory decisions (interim decisions) require the leave of the Appeal Court before an Appeal can proceed.  Leave to appeal must be filed within 28 days of the decision of the Court.

If an appeal is in respect of a Final Decision, leave of the Court to appeal is not required to be sought and the appeal must be filed.

The Appeal Notice must identify the basis of the appeal and show an error of law or miscarriage of justice.

Common reasons for appeal are as follows:

1.        Did the Judge fail to give adequate reasons for the decision that was made?

2.        Did the Judge make a decision in circumstances where there was no jurisdiction of the Family Law Act to make that decision?

3.        Did the Judge make a finding of fact which was not supported by the evidence?

4.        Did the Judge make an error of law in coming to the decision that the Judge made?

5.        Has anybody been denied procedural fairness?

6.        Did the Judge prejudge or decide some of the issues before the evidence was concluded?

Timing of the progress of the appeal is as follows:

  • A Notice of Appeal together with a copy of the Orders that are being appealed must be filed with twenty-eight (28) days of the date of the Order. 
  • A Notice of Appeal must be served on each party to the proceedings within fourteen (14) of filing.
  • The Respondent to the appeal may file a cross-appeal within fourteen (14) days of service of the Notice of Appeal or within twenty-eight (28) days of the Order that is the subject of the appeal. 
  • The Appellant must file a draft index to appeal within (28) twenty-eight days of filing of an appeal.
  • Thereafter an Appeal Book must be prepared by the Applicant for the Appeal.  This will include the relevant pleadings, judgments, orders and documents filed or relied upon in the original proceedings.

If you are unhappy with a decision handed down by the Family Court of Australia or Federal Circuit Court of Australia and believe that there has been an error of law or miscarriage of justice in your matter, please contact Richard Watson Family Law Solicitor or Shereen Da Gloria his Personal Assistant to discuss your concerns and seek advice as to whether you have grounds to lodge an Appeal.  Do not delay in seeking an opinion as to your prospects on an Appeal as strict time limits apply (some of which are short).

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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