How do I appeal a Family Court decision?
If the Family Court has made a ruling that a party is unhappy with, there is generally an option to appeal the decision that has been made.
In Australia, a Family Court decision can be appealed under Division 4 of the Family Law Act 1975 (Cth). An individual has the right to appeal a decision by the judge made in the Federal Circuit and Family Court when it concerns an issue relating to a child or child support matters.
Generally, it is recommended that an individual looking to appeal a ruling seeks legal advice to ensure the best chance of the appeal being accepted.
What does it mean to appeal?
An appeal means that the ruling made by the Court is set aside. This generally requires proving that there was an error in the original proceedings which led to an outcome that may not have been reached had the error not occurred.
Proving this can be difficult. Hence, appealing a decision of the Family Court requires more than just a simple disagreement with the ruling made.
It is also extremely important to note here that an appeal does not disqualify the original Family Court judgment until leave has been granted and the original judgment substituted. This means that whilst a party is seeking leave to appeal, they are still bound by the original Court’s judgment. Refusing to comply will complicate matters and may open the party to civil or criminal penalties.
Needing leave to appeal a decision
Generally, an individual will need leave to appeal a decision made by the Family Court. This means that the individual requires permission by the Court before they are able to submit an appeal. This requirement helps to ensure that the Court only allows appeals that are legitimate and not frivolous. This ensures that the Court’s resources are not wasted on illegitimate legal claims.
It is recommended to seek legal advice so that a family lawyer can help with seeking leave to appeal. Leave to appeal will be needed in circumstances where:
- A procedural or interim order does not relate to a parenting order.
- An order has been made under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
The time limits for an appeal
Notice for an application to appeal must be made by a party within 28 days of when the party received their Court order. This is a strict time limitation and hence it is important to seek legal advice as soon as possible so that the deadline is not missed.
To appeal a decision, what do I need to prove?
As stated before, it is not enough for an individual to simply argue they are unhappy with the result or that they are in a worse position than the other party. Instead, an individual arguing for an appeal needs to prove that the Court made an error.
Examples of errors that can be made as grounds for appeal are:
- That there was an error of law and hence the law was not properly applied
- That there was an error of fact and hence not all important facts were considered in the case.
It is notable that even if a party is able to prove that there was an error of fact or law present in the first proceedings, it is solely up to the discretion of the Court whether or not to accept or reject a party’s appeal. The factors relevant to the Court’s consideration of whether an appeal should be rejected or approved include:
- The importance and severity of the error of fact or law made in the original proceedings
- If there is a need for more evidence in order to ensure that the trial conducted is fair
- How much time has passed since the original decision was handed down and whether this will affect any other elements of the proceeding e.g. availability of evidence.
What to do if a party’s appeal is approved
If a party has lodged an appeal and it has been approved by the Court, the Full Court will overrule the decision made by the Family Court or Federal Circuit Court and might either:
- Order a retrial if it deems the circumstances appropriate
- Modify the original decision made so that it is now more appropriate in the circumstances.
What to do if a party’s appeal is rejected
As stated above, the Court has discretion whether or not to give a party leave to appeal even if errors of fact or law have been established. This means that they may well decide not to grant leave even if an error of fact or law has been established.
If this happens, there may be costs charged against the person who brought the proceedings and applied for the appeal. To avoid potentially incurring legal costs in the chance that an individual’s leave to appeal is rejected, it is recommended that a party contacts a lawyer.
If you need any assistance appealing a Family Court ruling please feel free to reach us via the contact form.
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