To appeal or not to appeal, that is the question.
You have been in the Family Court system for what seems like (and may well be) years.
You have invested significant time, energy and savings in the pursuit of your proposed orders.
At the conclusion of trial, the Magistrate or Judge hands down their decision and then makes final orders.
The outcome is not what you wanted… but don’t worry because you can appeal any Family Court decision, right? Not necessarily. Here is what you should know about the family court appeals process.
Do I need leave to appeal a decision?
Firstly, you need to determine whether you have an automatic right to use the family court appeals process by checking whether you need to apply for leave (permission) to appeal. This is often a complex question to determine and consultation of the family law legislation is necessary.
Leave is required in in circumstances where you seek to appeal:
- an interim or procedural order which does not relate to a parenting order;
- an order made pursuant to the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
In order to obtain leave, you must persuade the Family Court that there is sufficient doubt about the original decision to warrant its reconsideration and that refusing leave would cause substantial injustice.
On what grounds can I appeal a decision?
You cannot appeal a Family Court decision simply because the outcome was not what you were hoping it would be. An appeal is not a “do-over” and in most cases, it is not an opportunity to introduce fresh evidence.
You can appeal a Family Court decision where the judicial officer presiding over the original dispute has made a significant:
- Error of law – i.e. the failure to correctly apply the law when making their decision; and/or
- Error of fact – i.e. the failure to take into account available evidence or the incorrect interpretation of available evidence.
Even if you are able to establish an error of fact or law in your case, it is still at the Full Court’s discretion to allow or dismiss the appeal.
It is also possible to appeal a Family Court decision where the judicial officer has exercised their discretion (i.e. a “value judgement”) to a degree which is outside the range of reasonably possible outcomes. The Full Court is often reluctant to intervene in decisions involving the exercise of judicial discretion and consequently, appeals of this nature are not commonly allowed.
How does the Full Court exercise discretion in an appeal?
The difficulties faced by an appellate in these discretion related appeals was articulated in the decision of Australian Coal and Shale Employees’ Federation v The Commonwealth (1953). At 627 of the High Court’s decision, Kitto J stated:
the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
Further, it is important to be aware that the filing of your appeal may prompt the filing of a cross-appeal by the respondent on competing or alternative grounds.
What are the possible outcomes of a successful appeal?
If your appeal is successful, the Full Court may:
- vary the original decision or substitute its own decision in place of the original decision; and/or
- order a rehearing (or “retrial”) on such terms or conditions it considers appropriate.
It is not always possible for the Full Court vary the original decision or substitute its own decision in place of the original decision. The ability of the Full Court to re-exercise this discretion is determined by a number of factors, including:
- the nature of the error made in the original decision;
- whether further evidence will be required; and
- the amount of time that has passed since the original decision and the effect of this on the current state of the evidence.
If the Full Court is not able to re-exercise this discretion, a rehearing may be considered to be appropriate. Rehearing can be a dreaded outcome of an appeal. This entails starting proceedings again from scratch and can be costly, time consuming and emotionally draining. Further, there is no guarantee that the new decision will be more favourable to you than the first.
What are the possible outcomes of an unsuccessful appeal?
If your appeal is unsuccessful, the Full Court will dismiss the appeal.
It is also possible for the Full Court to determine that while the judicial officer did indeed make errors in the original decision, they ultimately came to the correct decision and the appeal should be dismissed.
Costs are commonly awarded against the appellate in an unsuccessful appeal. These costs may require some, or all, of the respondent’s legal costs and expenses to be paid.
Costs orders can be made in some of the following circumstances, including:
- where there are no legitimate grounds for appeal;
- where the appeal causes delay or prolongs the substantive proceedings; and
- where a respondent makes an offer that seeks to discontinue an ultimately unsuccessful appeal, but the appellant refuses to accept it.
Warning! An appeal does not stop the original decision!
Even if you or the other party have filed for the appeal of a Family Court decision, you should comply with the orders of that original decision (unless ordered otherwise).
For example, there may be orders for one party to pay a lump sum to the other within 28 days of the original decision. These orders are enforceable and if the paying party breaches them, they will be in contravention. Penalties such as interest on the non-payment can apply.
If you want to stop the operation of the orders of that original decision, you should file a Form 2 ‘Application in a Case’ for the “stay” of the orders, after your Notice of Appeal has been accepted.
Time is of the essence
A Notice of Appeal must be filed within 28 days of the date of the Family Court order you are appealing. Time limitation periods are strict, so you would need to demonstrate exceptional circumstances for a successful out of time appeal.
The rules in relation to the Family Court appeals process are highly technical. We recommend seeking tailored legal advice without delay. Discuss the complex appeals process, the likelihood of success and related expenses with a lawyer.
Note: the intention of this post is to provide general information only. Hence, this post refers to the varying appellate jurisdictions as the “Full Court”.