The Federal Circuit and Family Court of Australia determines disputes between parents regarding the future care of children and the division of assets following separation.
Family Law cases are often lengthy and costly court cases, but unfortunately, sometimes Judges get the final decision wrong. In those circumstances an Appeal can be filed requesting the Appellant jurisdiction review the original decision to determine whether a mistake has been made.
How do I Appeal a decision?
Within 28 days of the Court making Orders an Appeal must be filed in the Appellant jurisdiction of the Federal Circuit and Family Court of Australia. An Appeal is commenced by filing a Notice of Appeal setting out the grounds of the appeal and attaching the Orders made by the Court. A filing fee must be paid.
Once the Appeal is filed all parties to the original decision will be served with a copy of the Appeal and the Appellant (the person appealing the decision) is required to file a draft Index to the Appeal Book within 28 days which sets out the documents that are being relied upon in the Appeal.
Can the other party also appeal?
The other party to the appeal (the Respondent) can also Appeal the decision, for different reasons, by filing a Notice of Appeal for a Cross Appeal. If a Cross Appeal is filed then the Court will determine both the Notice of Appeal and also the Cross Appeal at the same time.
If the Respondent does not wish to contest the Appeal they can file a Submitting Notice.
How is an Appeal determined?
An Appeal is not a re-hearing of the original dispute but is an application to determine if the original Judge made an error of law.
It is not enough to disagree with the decision. There must be a specific legal principle which was wrongly applied in the original decision. It is insufficient for the Appeal Judge to consider that they would have taken a different course. Discretionary decisions are not decisions which ordinarily can be appealed.
After a Notice of Appeal is filed with the Court the matter is listed for a procedural hearing. At the procedural hearing the Court will determine whether it is an Appeal to be determined by a single Judge or the Full Court. Procedural Orders will be made for the filing of Submissions and a List of Authorities.
At the procedural hearing a date will be given for the hearing of the Appeal. At the Appeal hearing the Court will have reviewed the Summary of Argument and List of Authorities and oral submissions will be restricted to issues raised in the Notice of Appeal and Summary of Argument.
What material will the Appeal Court consider?
Prior to hearing the Appeal an Appeal Book will be filed. The Appeal book must contain:
- The documents and evidence at the original hearing;
- A copy of the Orders being appealed; and
- A Transcript of the proceedings.
Can further evidence be used during an Appeal?
A party to an Appeal may apply for an Order that the Court receive further evidence on the hearing of an Appeal by filing an Application in an Appeal. Without prior permission further evidence cannot be relied upon during the Appeal.
An Application in an Appeal seeking to adduce further evidence must be filed at least 14 days before the date of the Appeal. An Application in an Appeal seeking to rely upon further evidence must be filed with a supporting Affidavit which states:
- The facts that are to be relied upon;
- The ground of the Appeal to which the further evidence relates;
- The evidence sought to be tendered;
- The reason why the evidence was not provided at the original hearing.
Can costs be ordered in an Appeal?
Any party who seeks an Order for costs at the conclusion of the Appeal must serve a Schedule of Costs on a party/party basis on the scale prescribed by the Court’s Rules. The usual course is that an Application for Costs will be heard immediately following the conclusion of the Appeal.
What happens if an agreement is reached during the Appeal process?
If the parties agree on different Orders before the appeal has been determined, the Court can be invited to make amended Orders by the parties filing Consent Orders.
What happens to the original Orders during the Appeal process?
The filing of a Notice of Appeal does not stay the operation or enforcement of the original Order unless an Order is made to stay those Orders. If an application for a stay is made, then the party requesting the stay must file an Application in a Proceeding and an Affidavit setting out the basis for the stay. A stay application will be heard by the Judge who made the original Order unless that Judge is unavailable.
How can Baker Love Lawyers help?
Baker Love Lawyers have a team of specialised family lawyers with experience in Final Hearings before the Federal Circuit and Family Court of Australia and appeals before the Appellant jurisdiction of the Federal Circuit and Family Court of Australia.
If you have any questions regarding a potential appeal or any associated family law matter, please contact our firm to make an appointment with Matthew Carney an accredited specialist in family law on (02) 4944 3322.
