Can you appeal? How much does it cost to appeal? What if you don't win an appeal? Can I stay the orders pending an appeal?
Appealing in the Family Courts
The rules relating to an appeal of a decision of the family law court are technical.
Parties cannot simply appeal a decision because they are not happy with the outcome. A party must establish a valid ground of appeal to be successful on an appeal.
To establish a valid ground of appeal a party must establish that the family court judge made a significant error of law or fact. However, not ever error of law or fact will be able to be appealed, because on appeal the courts have a discretion whether to allow or dismiss the appeal.
Therefore, the circumstances in which parties can appeal a decision of a family court judge are very limited. Parties must seek advice from an experienced family lawyer before going down the path of filing an appeal. Not only may the appeal not be successful but it will involve a significant and unnecessary drain on emotional energy, time and financial resources. Lodging an appeal in effect suspends the healing process and prevents the parties from moving on with their lives, especially as appeals can take a long time to resolve or be determined.
One of the worst outcomes of an appeal, apart from it being dismissed, is that the case is remitted for a retrial. This in theory means that the parties are starting the proceedings again from scratch, which is a terrible outcome. If an appeal is successful, and has been properly presented, the courts on appeal, will try to exercise their discretion properly. But, that may not be possible in every case.
How to appeal?
To commence an appeal a party must generally file a notice of appeal within 28 days after the date of the order being made.
The nature of the appeal will depend on the court that made the original decision and the nature of the order appealed.
The Full Court of the Family Court of Australia is the Court of Appeal in family law.
In general, appeals from the Federal Circuit Court of Australia, Family Law Magistrate of Western Australia or Judge of the Family Court of Western Australia lie to the Full Court of the Family Court of Australia, unless the Chief Judge of the Family Court of Australia considers that the jurisdiction may be exercised by a single judge. The Full Court of the Family Court of Australia travels on a circuit to all major capitals for the purpose of hearing appeals.
In relation to extra nuptial-children in Western Australia, an appeal lies to the Supreme Court of Western Australia being the WA Court of Appeal.
Interim orders are dealt with on a different footing. To appeal an interim order, parties must first obtain leave to appeal. To obtain leave, a party must establish that there has been an error of principle, a substantial injustice to one of the party or that the issue is one of general importance.
Once an appeal has been lodged, the appeal will be listed for a directions hearing for procedural orders to progress the appeal to a hearing.
It is very important that parties stick to the time limit prescribed by the court or their appeal may be dismissed.
Once a party appeals it is possible for the other party to cross appeal.
Decisions from the Full Court of the Family Court of Australia may be then appealed to the High Court of Australia in appropriate circumstances.
Appeals can be resolved by agreement of the parties without the need to progress to a hearing of the appeal.
A very important consideration when appealing is the legal costs. The costs of appealing can be prohibitive. Often the unsuccessful party on appeal will be ordered to pay the legal costs of the other party. The risk of a significant cost order is higher in appeal proceedings than in proceedings in first instance. The legal costs involved in conducting an appeal are significant.
Beacon Family Law has advised and represented parties in relation to commencing, continuing and resolving appeals. Beacon Family Law is able to provide lump sum and other packages for parties considering an appeal or defending an appearl.
If you are thinking about appealing then due to the strict time limits you must obtain advice from an experienced family lawyer without delay.