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How to decide if you should appeal your family law case

By June 27, 2019February 23rd, 2024No Comments

If you’re unhappy with the result of your family court proceedings, and are considering appealing the decision, there are a few things to bear in mind. First and foremost, unfortunately an appeal is not a retrial or a ‘second bite at the cherry’ if you didn’t like the outcome of your trial. But this is something that many litigants clearly do not accept, with the court databases chockfull of judgments where litigants are chastised for their misconceived applications by a long-suffering judge.

It is undoubtedly tempting to try to get a better outcome of your matter by returning to court, armed with new issues to air, or new evidence that it is felt would change a judge’s mind. But unfortunately, the appeals court cannot consider such information and it is simply dismissed.

Appeals are dealt with in Part X of the Family Law Act 1975 and are the way that mistakes of fact or errors of law by judges are reviewed. Appeal courts can affirm, reverse or vary the decree or decision the subject of the appeal, or they can substitute their own decisions in place of those of the original judge, or order a rehearing.

Unsuccessful litigants often feel their trial judge didn’t given enough consideration to a particular aspect of their case. It may be argued that “insufficient weight” was given to the issue, and felt that the appeal court judges will give the specific issue more consideration or weight. But such hopes may often be misguided – if “insufficient weight” is the exclusive grounds for appeal, it is often unlikely to succeed, as family law judges have a great deal of discretion regarding how they determine the weight they place on various elements.

There are a lot of factors to consider in determining whether to appeal the ruling in your family law matter, which you should discuss with your lawyer. This includes whether there are any alternative remedies open to you, what the likely legal costs are, and what the prospects of success are. You should consider how an appeal might stop everyone from moving on or even reignite hostilities, all of which can interfere with achieving that all-important ‘clean break’.

In deciding if an appeal is warranted in your case, consider the following issues (among others):

  • Did your trial judge fail to give adequate reasons for their decision?
  • Did the trial judge have jurisdiction to make their decision?
  • Were you denied procedural fairness?
  • Did the trial judge pre-judge any of the issues before completion of evidence?
  • If you can show the judge made an error of fact, does the error materially influence the outcome of the matter?

Remember, as a rule of thumb, something needs to have gone very wrong in a trial in order for an appeal to succeed. But if you’re certain there’s been an injustice in the outcome of your family law matter, or you can show that the trial judge has made a critical mistake in their application of the law, then launching an appeal may well be within your rights.

You can read an official factsheet about the appeals process in the family court here.

It’s really important you obtain legal advice around any decision to appeal a family law matter before you risk incurring fees. This goes for whether you are the appellant or the respondent in a case. In one recent matter, a mother who had been served with a Notice of Appeal failed to have the court issue her a costs certificate, with the judging noting that, on receiving the Notice “the respondent should have given careful consideration to its merits and whether it was prudent for her to concede the appeal much earlier and without her needing to incur sizeable legal expenses”.

Please also bear in mind there are strict time limits in place for filing an appeal. Generally speaking, you have to file your Notice of Appeal within 28 days of the Order being made. You’ll need to serve the Notice of Appeal on the other parties within 14 days of filing it, and you’ll need to prepare a draft index to appeal book within 28 days of filing your appeal. If you are the respondent, you can file a cross-Appeal within 14 days of service of the Notice of Appeal. You may also need to first seek leave to appeal – your lawyer will explain exactly what this means for you.

Do you need assistance with a family law matter or advice regarding an appeal? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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