I don’t like the outcome of my Family Law Court proceedings. Can I appeal?

If you’re considering appealing a decision, you need to consider a few things such as who made the decision, what the decision was and if, after receiving advice, you still think you should.

Depending on who made the decision, there is a different procedure to follow if you are unhappy with the Orders. An experienced Family Lawyer will be able to advise on the merits of any application and guide you through the process if you decide to proceed.

Decision of a Judge

If the decision maker was a Judge, your lawyer can file a ‘Notice of Appeal’.

The Notice of Appeal must be filed within 28 days of the judgment or decision being made. This time limit applies to both interim and final decisions.

Whilst it is possible to file a Notice of Appeal out of time with the permission of the Court, it is not guaranteed that the Court will allow you.

You should not appeal just because you don’t like the outcome. In order to be successful, you must be able to show that the Judge either made an error of law or that they misapplied the law.

When you file a Notice of Appeal you will be required to obtain the transcript of the proceedings and as the Appellant (the person appealing the decision) you will be required to pay for the preparation of the transcript.

If your appeal is successful, the Full Court can either re-exercise the discretion of the Court (i.e. replace the incorrect decision with a new one) or can remit the matter for re-hearing (i.e. send it back to the lower Court, to be re-heard by a new Judge).

Decision of a Registrar

If the decision maker was a Judicial Registrar or a Senior Judicial Registrar, you can file what is called an “Application For Review”. Unlike where the original decision maker was a Judge, you do not have to show that there was a legal error. A Review is a “hearing de novo” which means you are applying to have the application heard all over again by a Judge who can make the same decision or a completely different one.

An Application for Review must be filed within 21 days of the original decision.

For parties who are happy with Orders made by a Registrar, this process may seem like the other party is getting a free kick at the goals (and in some ways it is), however, it is important to understand that the reason for the process is that when a Registrar is exercising a delegated power (for example the power to make interim parenting Orders), there must be an ability to ask the Court to review the exercise of that power.

To make matters more complex, if your matter is re-heard by a Judge, and the Judge makes an error, you may have grounds to appeal this decision!

Complying with Orders

Irrespective of any Appeal or Application for Review being filed, the existing Orders will continue to operate, and you are required to comply with them. If you want to attempt to halt the operation of the Orders, you must file an application seeking a ‘Stay’ of the Orders. The original decision maker will then consider whether the operation of the Orders should be stayed, pending hearing of the Appeal, or Review.

To appeal (or review) or not to…

Whether or not you can appeal (or seek a review), the real question is “should you?”. It is important to know that if your application is unsuccessful, there could be costs consequences for you.

Before you make the decision to appeal, review and/or seek a stay of the operation of the Orders, you should seek expert legal advice from a Family Lawyer.

If you are considering appealing, you need to be confident that you have an arguable case. The best person to advise you on whether a Judge has made an error of law, is a specialist Family Lawyer.

When a Judge reviews a matter, it is always a possibility that you may end up ‘worse off’. If you are considering an application for review, you need to be assured that there is a probability of getting a better outcome.

We will be able to advise you on the merits of any application, likely costs associated and guide you through the process should you decide to proceed.

Specialist Family Lawyers for Sydney and Newcastle

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.

Principal Solicitor
Accredited Specialist (Family Law)