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Family Law Appeals

Family law appeals are fairly uncommon in Australia. There are a few reasons for this. Firstly, family law judgements are discretionary, which means that unlike in some other areas of law, where there is a single correct decision that the court should make if it properly considers the evidence and applies the law, family law judges have a lot of leeway in terms of the decisions they can make. This can make it difficult to prove that a decision was made erroneously. Secondly, a lot of people go through family law proceedings self-represented and lack the technical knowledge needed to initiate and run an appeal. Interestingly though, around half of the family law appeals that proceeded in Australia are successful. So when is it advisable to file a family law appeal?

Should I appeal?

Family law appeals are not a chance to have your case considered again from the start. Appeals should be based on an error by the court that is so serious that it amounts to a miscarriage of justice. It is not enough that you are unhappy with the decision or that another decision would have been better. However, if you think that the court made a serious error of law, you should consider appealing.

Common grounds of appeal in family law appeals

The most commonly argued grounds of appeal in family law appeals are:

  • The judge failed to properly consider some or all of the evidence;
  • The judge made a decision that was plainly wrong;
  • The judge failed to give procedural fairness to one of more of the parties;
  • There was a denial of natural justice;
  • The judge gave inadequate reasons for their decision;
  • The judge was biased.

How to commence a family law appeal

If you decide to commence an appeal, you must file a Notice of Appeal within 28 days of the court decision. The filing fee for a Notice of Appeal is currently $1360. Within 14 days of filing a Notice of Appeal, the Notice of Appeal must be served on the other parties.

You will need to obtain a transcript of the proceeding and this must be paid for yourself (the cost will depend on the length of the proceeding). Remember that filing an appeal does not mean the orders made as part of the decision are suspended. To suspend the orders, you will need to make a separate application for a stay on the operation of the orders.

What happens after filing a Notice of Appeal

Within 28 days of filing a Notice of Appeal, a draft index to the appeal books must be filed. The draft index lists all the documents the appellant (party that is appealing) thinks should be included in the appeal books. This will generally include all the documents that were before the judge that made the original decision, including affidavits, reports and subpoenaed material. If no draft index is filed by the deadline, the appeal is taken to have been abandoned. 

After a draft index is filed, the appeal is listed for a procedural hearing. At this hearing, procedural orders will be made for the preparation of the appeal. Deadlines will be set for the filing of any other necessary documents.

Who hears family law appeals?

Appeals against decisions by Division 2 of the Federal Circuit and Family Court of Australia (FCFCA) are made to Division 1 of the FCFCA.

Is my appeal likely to succeed?

It’s a good idea to get legal advice as to how likely your appeal is to succeed at an early stage. This avoids wasting time and money on an argument that is not likely to succeed. If you cannot get legal advice within 28 days of the original decision, you should file a Notice of Appeal so that your right to pursue an appeal is reserved if you decide to pursure an appeal. If you subsequently receive advice that the appeal is unlikely to succeed, you can discontinue the appeal.

If you require legal advice or representation in a family law matter or any other legal matter please contact Armstrong Legal. 

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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