Sometimes the court doesn’t always get it right, and in those circumstances you may be eligible to submit an appeal. When you’re dealing with your future, if the court makes an error it is within your right to try and fix the problem.
But what is an appeal, and what happens if yours is accepted, or rejected?
Firstly, if you’re planning on submitting an appeal, the best thing to do is to speak to your family lawyer. However, if you keep reading below you can learn what you need to know about appeals before you try submitting yours.
What is an appeal?
If you’re wondering what does appeal mean, or you want to define appeal, you might also be wondering; “can a judge’s ruling be overturned?” An appeal isn’t overturning a ruling, rather setting it aside. You won’t have your matter reheard, instead you must convince the judge that there was an error in the original hearing. A simple disagreement with the result is not base for an appeal.
Do you need leave to appeal a decision?
Before you apply for an appeal, you need to determine whether you need to apply for leave (permission) to submit the appeal. It is best to hire a family lawyer to do this for you.
You will need leave when:
- An interim or procedural order does not relate to a parenting order.
- There is an order made pursuant to the Child support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
Can you appeal a family court decision in Australia?
For the short of it, yes you can appeal a family court decision in Australia. Under Division 4 of the Family Law Act 1975 Cth, if a judge makes a decision in the the Federal Circuit and Family Court of Australia, you have the right to appeal any final decree when it concerns a child or child support.
How do I challenge a family court order?
You can’t appeal any decision just because you’re not happy with the result, and you think you have come out in a worse position. It is not a recount and you do not get to be heard again, and in most cases you are not allowed to present new evidence.
Family court judgements are usually final unless there is an error in the family court process. So if you want to challenge a family court order, you must find grounds for an appeal and that the court made an error. These errors can include:
- An error of law and the law was not correctly applied.
- An error of fact and not all of the available evidence was considered.
Even if you can prove an error of law or fact, it is completely up to the discretion of the courts to accept or reject your appeal. If you want the best chance for success, you should hire a family lawyer.
What happens if an appeal in court is approved?
If your appeal is approved, the Full Court will overrule the Family Court or Federal Circuit Court, and may:
- Change the original decision or substitute with its own decision instead of the original decision.
- Order a retrial on terms and conditions it deems appropriate.
The factors that affect if you get a substitute decision or retrial
Because the decision for what happens to your future comes down to the court’s discretion, you want to make sure you have a lawyer that can present the best possible argument. The factors that will affect the court’s decision include:
- The nature and severity of the error made in the original decision.
- If more evidence will be required for a fair trial.
- How much time has passed since the original decision was made, and how this will affect the current state of evidence.
What happens if permission to appeal is refused?
It is possible for the Full Court to decide that although errors were made in your original decision in either law or evidence, they still came to the correct decision regardless. If this happens, your appeal will be refused.
If your appeal is refused, legal costs can be charged against the appellate. Cost orders can be made in circumstances which include:
- There is no grounds for an appeal.
- The appeal delays or prolongs the substantive proceedings.
- The respondent makes an offer that seeks to discontinue an unsuccessful appeal, but the appellant refuses to accept it.
If you want to avoid any extra legal costs, your best chances will be to contact a lawyer.
An appeal does not stop the original family court order
When you submit an appeal, you absolutely must remember that it does not stop the original court order, even if it looks like that may happen in the future. If you are bound by the court to do something, you have to still do it. Don’t start contesting a VRO or refuse to pay a fine just because you have submitted an appeal, because if you don’t carry out a court order you will be liable to punishment and your appeal is more likely to be refused.
Don’t delay your appeal
Notice for your appeal must be made within 28 days of when you were given your court order. Due dates and deadlines are strict in the court system, so make sure you don’t leave your appeal to the last minute and miss your opportunity. If you’re having difficulty, or don’t have the time, you should hire a lawyer.
Where to get help and advice on your appeal
Don’t let Google search stand in as your lawyer. There is a wealth of information out there and it’s a good place to start so you have a basic understanding, but no amount of reading will beat a legal professional.
So how do you find a lawyer you can trust and rely on? With so many law firms in Perth, it can be hard to find one who will understand and listen to your situation.
Savannah Legal offers a free 1 hour consultation and we take the time to understand your situation, concerns and needs, before providing you with a legal plan outlining your options. Our goal is to give you affordable legal advice while lifting a burden off your shoulders. Book your free consultation today.
