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Should you appeal?

By December 27, 2021February 23rd, 2024No Comments

If you are considering appealing the outcome of your family court proceeding, it’s important to know whether your appeal has any prospects of success. We take a look at a recent appeal case in the family court which was pretty much guaranteed to fail.

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Appeals are the way that errors of law by judges are reviewed. Appeal courts can affirm, reverse or vary the decision the subject of the appeal. They can substitute their own decisions in place of those of the original judge, or order a rehearing. 

Importantly, an appeal is not a retrial or a “second bite at the cherry” if you didn’t like the outcome of your original trial.  An appeal can only deal with the question of whether a primary judge made an error during the trial.

One of the arguments that is extremely unlikely to persuade an appeals court is that you are a sovereign citizen and therefore above the law. But that’s what a father recently attempted to argue when appealing his family court parenting outcome. In the case of Dawkins & Penton (pseudonyms), the father claimed he had “freed himself and the child from the doctrine of parens patriae including the authority of the courts exercising jurisdiction under the Family Law Act 1975…so that he alone has parental authority over the child”.

The case involved a 7 year old girl ordered by a primary judge to live with her mother, who was granted sole parental responsibility. Due to findings of family violence including stalking, the father was restrained from approaching the mother and child.

The father’s arguments, bizarre assertions and curious appended documents appear in line with a view of himself as a sovereign citizen, holding an “executorship” that “overrules all other Commonwealth authority over him”. Self-styled sovereign citizens have appeared in the media numerous times since the COVID-19 pandemic began, with individuals attempting to avoid compliance with public health orders by stating they were sovereign citizens.

But in the family court, the appeal judge was not persuaded by the father’s submissions:

“I can do no more than say I do not understand the submission or the matters in which it is based and do not accept it.”

Another aspect the father wished to appeal was against the injunctions restraining him from approaching the child. He claimed the restraints impacted his freedom of movement “required…to pursue his employment, livelihood, trade and commerce”. But the appeal judge pointed out:

“Having regard to the distances in this matter (100 metres), it seems unlikely that the orders would impose any restriction on the father to carry out his business as a construction worker.”

The appeal judge could identify no error on the part of the primary judge, and the case was dismissed.

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 err in the application of law?
  • Were you denied procedural fairness?
  • Did the trial judge pre-judge any of the issues before completion of evidence?

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 something you should pursue.

It’s really important you obtain legal advice around any decision to appeal a family law matter before you proceed, as there may be very significant costs consequences against you if you do not succeed with the appeal.  

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 Notice of Appeal. Your lawyer will be able to confirm the time limits that apply for you.

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

You might also like to read our previous blog on appealing a family court decision.

For family law advice, please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law 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 Family Law.


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