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Family Law Overturning Orders in the Family Court - Can I Appeal if the Case Goes Wrong?

23/03/2021

What is an Appeal?

An Appeal is a procedure which enables a party to Court proceedings to challenge a Decision made by a Court.  Appeals can be made in relation to the Decisions of a Judge of the Family Court of Australia or a Judge of the Federal Circuit Court of Australia.  Which Court will hear the Appeal will differ depending on what Court made the Decision or made the Order that is challenged.   

Leave to Appeal – Final Orders and Interim Orders

What are Interim Orders?

The Family Court of Australia or Federal Circuit Court of Australia can make Final Orders and can make Interim Orders. 

A Final Order of a Court is an Order that fully determines all aspects of the case before the Court.  Once a Final Order is made, the case is concluded.

In some circumstances, the Family Court/Federal Circuit Court will be asked and will make what are called Interim Orders.  These are Orders that the Court makes to resolve urgent issues or makes in relation to procedural matters to progress the case through to a Final Hearing.

Examples of types of Interim Orders:

  • Exclusive occupancy to the husband or the wife.
  • Orders for production of documents.
  • Orders restraining a sale of property pending final hearing.
  • An order granting a party leave to proceed with a case out of time.
  • Appointment of a liquidator or winding up a company.

When Can I Appeal?

Final Orders – If the Order of the Family Court/Federal Circuit is a Final Order, an Appeal can be filed.  There is a right to Appeal a Final Order and the Courts leave to Appeal, is not required.  Any Appeal must be filed within 28 days of the date of the Judgment. 

Interim Orders – If the Order is an Interim Order, you will need the Court’s permission before you can file an Appeal.  This is the case for Appeals in relation to Interim Orders.  This permission is known as “leave” to Appeal.

When Will the Court Grant Leave to Appeal an Interim Order?

If the Order sought to be overturned is only an Interim Order (and does not relate to a Parenting Order), the leave of the Appellant Court will be required before the Court will hear the Appeal and determine the issue as to whether the Order should be overturned.  In order to obtain leave to Appeal under s94AA(i) of the Family Law Act 1975, the Appellant must show an error of principle and/or the fact that the Appeal Decision caused substantial injustice.  Leave will not be granted if the complaint made is only a complaint in relation to an exercise of judicial discretion. 

How is the Appeal Conducted?

An Appeal is not a re-hearing of the original dispute.  The case is not a second opportunity to obtain a different outcome on a new approach or with different or better evidence.  The Appeal Court must be convinced that the Juridical Officer who made the first Decision, made an error. 

The Appeal Court:

  • Does not consider any evidence or information that was not before the Judicial Officer below, except in special circumstances. 
  • Does not call witnesses to give evidence.
  • Reads all the relevant documents that had been filed.
  • Takes into account the written submissions.
  • Listens to leave argument from each party. 

In order to be successful, you will need to convince the Full Court that the Judicial Officer made an error, such that the Decision should be set aside.  The Court must be persuaded that there was:

  • Application of the wrong principle of law; or
  • Making a finding of fact or facts on an important issue which could not be supported by the evidence; or
  • Exercised his or her discretion to arrive at a Decision that was clearly wrong. 

After Filing of an Appeal – No Automatic Stay

The filing of a Notice of Appeal does not automatically stop the operation of the Order that has been appealed.  The Order will continue to be effective until the Court “Stays” the operation of the Order.  A separate Application, by way of an Application in a Case, must be made to the Family Court/Federal Circuit Court that made the original Order. 

If you are considering appealing a Family Court/Federal Circuit Court Decision which you view as being unfair or inequitable, our experienced Family Solicitors at Watson & Watson Lawyers can assist you in providing a second opinion and in all aspects of the appeal and in navigating the appeal.  Please contact Richard Watson Senior Family Lawyer or his Personal Assistant Shereen Da Gloria to discuss your matter and seek timely advice.

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

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