An appeal is a procedure which enables a party to legal proceedings to request that a higher authority reviews a Court decision. In family law matters, a party can request the appeal Court to set aside a decision made by a Federal Circuit and Family Court of Australia (FCFCOA) judge or registrar.
An appeal is difficult to win. It is not a rehearing of the original dispute but rather a process where the appeal Court will need to be convinced that the primary judge made an error.
If the decision was made by a judge of the FCFCOA (Division 1) then an appeal must be heard by the Full Court (three judges).
If the decision was made by a judge of the FCFCOA (Division 2) then an appeal will in most circumstances be heard by a single judge. However, the Chief Justice has the discretion to direct that an appeal be heard by the Full Court instead. If the appeal is determined by a single judge, there is no right of appeal to the Full Court.
During an appeal, the Court will not hear any new evidence. Appeal Courts are often heard to say that they should be reluctant to interfere with the way that the primary judge applied his or her discretion, when that Judge got to see the parties give evidence, and the appeal Court did not.
If an appeal is successful, the Judge/Full Court can make a different order to the original order or they can order a re-trial (which is another hearing of the matter).
It is important to seek legal advice before filing a Notice of Appeal, as this is a fairly technical area of family law. You should also act quickly: a Notice of Appeal must be filed within 28 days of the original decision.
Why you should engage with Dimocks Family Lawyers
If you are involved in or considering an appeal, it is important that you engage with a specialist family law firm. Both Chris Dimock and James Richardson are Accredited Specialists in Family Law, and well-versed with the Appeals process. Should you require advice or assistance about appealing a decision, please call us and organise an initial conference, so that one of our specialist family lawyers can advise you of your prospects of success.