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Family court appeal – don’t fight a losing battle

By February 1, 2021February 23rd, 2024No Comments

A recent appeal case highlights the need to really consider the merits of the grounds on which you want to appeal your family court matter’s outcome, lest you embark on a costly and futile process that only causes you more pain in the end…

This parenting matter (called “Saltern & Mink”) involved a father who had perpetrated assaults on a mother, and their 2 year old child had been exposed to the family violence. Because of the findings of a risk of family violence and risk of harm to the child, the trial judge said, “the presumption as to equal parental responsibility does not apply and the inability of the parents to cooperatively co-parent and the need for consistent decision-making dictates that as the primary caregiver for the child the mother should have sole parental responsibility”. Orders were made by the trial judge which intended to protect the child by imposing limited daytime periods of contact, and no overnights, with the father. The father appealed these orders, but was unsuccessful.

In a nutshell, the father tried to argue that the trial judge had made a mistake in not properly considering certain submissions, but the appeals court found the judge had in fact properly considered all the evidence. Here are some takeaways to consider from this case…

“The judgment leaves information out, so the judge obviously didn’t properly take it into account”

In reading your family court judgment, you may well be dismayed to find that the primary judge did not reference all the facts and arguments you raised. However, judges are not required to do so. While they are required to consider all such evidence and submissions, they do not have to mention it all, and every step of their decision-making process, in their judgment. This can lead to the worry that the primary judge did not actually consider the information. However, appealing on such a ground would be misguided if it would only lead to the appeal judges reminding you that the primary judge does not in fact have to detail every fact or argument raised in the proceedings.

“A different judge would have seen things differently”

Another thing that people find most confusing about family law judgments and appeals is the discretionary nature of judicial decisions. That is, if you put the same evidence in front of two different judges, they may reach different conclusions about what is in the best interests of a child. But as the family court appeal judges in this matter explain:

“Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.”

Judges’ intuition and guesswork

Family court judges do interpret how to apply the law to a particular set of circumstances, but it’s not a mathematical formula. “Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a party in the making of an order,” said the appeal judges in this matter.

If there was error, did it cause a miscarriage of justice?

Although here, the family court appeal judges found there had been no appealable error, it’s useful to note that they pointed out that there would have been “no substantial miscarriage of justice…demonstrated even if the complaints of error were established”.  In other words, even if you are able to demonstrate error on the part of your trial judge, such error is regarded as only relevant if it has led to a substantial miscarriage of justice. If the error wouldn’t have made much difference to the outcome either way, it’s probably not going to be regarded as worth setting aside the trial judge’s decision, and for the parties to have to go through a second final hearing. Also, if your appeal is unsuccessful you may also be ordered to pay the other party’s costs.

Put simply, it is very difficult to challenge a discretionary judgment. There are only certain grounds on which you can file an appeal and you should strongly consider obtaining legal advice before filing a Notice of Appeal.

If you do wish to obtain advice regarding your chances of appealing your family court outcome–remembering you must file your Notice of Appeal within 28 days of your trial judgment being handed down–please give Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law a call on (02) 6223 2400. Take advantage of our free first conference offer.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law. You can read the abovementioned judgment here.


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