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Appeals
Decisions made by the Federal Circuit and Family Court of Australia can significantly impact your life. There may be circumstances where you believe the Court’s decision is unjust or incorrect. In these instances, it is important you are aware of the appeals process and what your options are.
Honan Family Law is a team of experienced family lawyers who are here to not only help facilitate your right to initiate an appeal, but provide support and counsel throughout the entirety of the process. We understand the effect these complex processes can have on your life and work with your circumstances to provide clear and compassionate advice throughout this time.
What is an appeal?
An appeal is not a rehearing of the original dispute, it is a request to review and change the decision of the Court. An appeal might be appropriate if you believe there has been a ‘gross miscarriage of justice’ or the Judge made an error in applying the law.
What is the process of filing for an appeal?
If you have determined you have valid grounds to initiate an appeal, you will need to follow these steps:
- Submit a Notice of Appeal: This must be completed within 28 days of the original decision, so it is important you act quickly. Filing a Notice of Appeal will incur a filing fee.
- Notify the other parties: You are responsible for serving the Notice of Appeal to the other parties involved, within 14 days of filing. It is important to be aware that the other parties have a right to file a cross-appeal in response, if they choose.
- Submit a draft index to the appeal books: Once you have filed the Notice of Appeal, you have 28 days to compile a comprehensive index to the appeal books. This includes collating all documents from the original decision you believe are relevant to the appeal. If you do not submit a draft index, your appeal will be considered to be abandoned.
- Procedural hearing: Your appeal is then heard at a procedural hearing. The judges will review your submitted documents and any responses from the other parties, and inform you of any additional information required for the Full Court hearing.
- Full Court hearing: Your appeal will be taken before the Full Court.
Appeals are a complex process and can be lengthy, expensive and emotionally taxing. Understanding the process and ensuring you adhere to any procedural requirements can greatly increase your chances of a successful appeal.
Seeking advice from experienced family lawyers like Honan Family Law, will help you understand whether to proceed in this direction, as well as provide the support you’ll need throughout the appeals process.
Everything you need to know about filing an appeal
A Notice of Appeal must be filed within 28 days after the date the order appealed from was made.
If you missed the time limit, it is possible to apply for leave to appeal out of time, although there is no guarantee the Court will grant such leave. The relevant factors the Court will consider in granting leave are:
- the length of the delay;
- the reasons for the delay;
- any disadvantage it has caused the other party;
- the merits of the proposed appeal; and
- the overall justice of the case.
It is not possible to appeal simply because you are not happy with the decision. You must convince the Court that the first instance Judge made an appealable error, such that the decision should be set aside. In order to do this you must persuade the appeal Court that the Judge:
- Applied a wrong principle of law; or
- Made a finding of fact or facts on an important issue which could not be supported by the evidence; or
- Exercised his or her discretion to arrive at a decision which was clearly wrong.
If the appeal is successful the Court may:
- Make a different order to the one made by the Judge, or
- Order a retrial (another hearing) by a different Judge.
The appeal will be dismissed if it is unsuccessful. It is also possible for the Court to find that, although the Judge made some errors, they ultimately came to the correct conclusion and the appeal should therefore be dismissed.
If your decision was not made by a court officer who is not a Judge, being a Judicial Registrar or a Senior Judicial Registrar of the Court and you consider it is wrong, a party can file an Application for Review to have that decision reviewed by a Judge.
The time period to file an Application for Review is slightly shorter than the appeal period, it being 21 days after the order or decision being made by the Registrar.
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