Family Law cases are heard in either the Federal Circuit Court or the Family Court. In some cases, there are grounds for family lawyers to lodge an Appeal against a decision by the Judge making Interim and/or Final Orders on your family law matters.
WHO HEARS APPEALS?
Appeals are heard either by one or more Judges depending on which Court made the Order which you wish to appeal.
STRICT TIME LIMITS AND PROCEDURAL PITFALLS
If a party (the Appellant) wants to appeal an order, the Appellant has to file a Notice of Appeal at Court within 28 days of that order being made.
The Family Law Rules set out strict time limits within which to attend to other paperwork after the Appeal is filed, such as:
- Serving the Notice of Appeal on all other parties – 14 days;
- Filing a draft Index to the Appeal Books and serving it – 28 days;
- Attending Court for a procedural hearing when set by the Court;
- Filing and serving Appeal Books on all relevant parties – by a date set by the Court;
- Filing and serving a Summary of Arguments and list of previous relevant Court cases, on all other parties – not less than 28 days before the beginning of the Appeal sitting;
- The other party (the Respondent or Cross-Appellant) is also required to file certain documents within a strict time frame if the Respondent wants to challenge the Appeal.
TO APPEAL OR NOT TO APPEAL?
- You should not appeal just because you do not agree with the original Court’s decision;
- In some limited cases you need the Court’s leave (permission) (see Section 94AA of the Family Law Act 1975);
- In other cases you simply cannot appeal against the Court’s decision at all;
- You should only appeal if the first Court made an error e.g. that Court:
- Applied the law wrongly;
- In exercising its discretion, arrived at a decision that was clearly the wrong one, ie. a decision so wrong that no reasonable Judge would have made it;
- Made a wrong finding in fact. This needs to be a clear error of finding of fact and easily provable.
FINANCIAL CONSEQUENCES OF AN UNSUCCESSFUL APPEAL
If you wish to file an Appeal against an Order there is the prospect of significant costs if you are unsuccessful.
- A fee usually has to be paid to the Court (filing fee) at the start of the Appeal;
- The fees required by the accredited family law firm representing you for the preparation and presentation of your case can be significant due to complexities;
- A transcript fee – i.e. a copy of the recording of the original Court’s hearing must be paid for by each party;
- If your Appeal is not successful the Court will usually order you to pay the costs of the other party(ies);
- You can stop (abandon) your Appeal at any time. However if you do so you are likely to be ordered to pay all other litigants’ costs.