What is an Appeal in a Family Law matter?
In Family Law, an appeal happens when Orders have been made, and a party to those orders wishes to have them changed. In an appeal, you are asking a higher Court (i.e. the Family Court of Australia or the Full Court of the Family Court of Australia, as appropriate) to set aside a decision made by a Judicial Officer of a lower court (i.e. the Federal Circuit Court of Australia (to the Family Court) or the Family Court of Australia (to the Full Court)).
It is important to note that an Appeal is not a re-hearing of the original dispute. It is an examination of whether the law was applied correctly in your case. To succeed, you must show that the Judicial Officer of the lower court applied the law incorrectly. However, this can be quite difficult, as the law often permits a Judicial Officer to make one of a range of decisions.
If your Appeal is successful, the court determining the Appeal may:
- make a different order to the one made by the Judicial Officer, (i.e. change the Orders); or
- order a retrial (i.e. send your matter back to the lower court to be reconsidered).
Your Appeal will be dismissed if it is unsuccessful.
Do I need a lawyer to appeal or can I do it myself?
It is strongly recommended that you obtain independent legal advice in relation to an Appeal. Even if you plan to conduct an Appeal yourself, it is important to obtain independent legal advice on whether you have valid legal grounds to appeal.
An Appeal will only be successful if the judge has not applied the law correctly. Therefore, in order to be successful you must be able to convince the Appeal court of how the law should have been interpreted. This will require you to develop an argument that may be quite technical and complex.
What happens if my appeal fails?
If your Appeal is dismissed, it is likely that you will be ordered to pay some or all of the other party’s costs of the appeal.
In a recent family law case, the Full Court of the Family Court of Australia determined that costs can be awarded where one or more of the following factors occur:
- Where the appellant should not have pursued the appeal;
- Where the appellant did not accept good offers from the respondent that would have resolved the matter; and
- Where the appeal itself was “entirely pointless”.
In this case, the appeal was considered “entirely pointless” because it was against a short-term interim Order that had ceased to apply once the appeal was actually heard.
Other factors that the Court will consider when determining costs in an appeal case include:
- The incomes of the parties (s117(2A)(a) FLA);
- The conduct of the parties (s117(2A)(c) FLA);
- Whether the appeal was necessary due to a failure by one of the parties to comply with the previous orders (s117(2A)(d) FLA); and
- Whether a party to the appeal was wholly unsuccessful (s117(2A)(e) FLA).
Do you wish to lodge a Family Law Appeal? Contact us
We at Corney and Lind Lawyers can give you independent and expert legal advice in relation to the following:
- Define whether you have a legal issue suitable for consideration on Appeal;
- Provide practical options available to you; and
- Explain the costs, practices and procedures involved in Appeal litigation.