APPEALS
If you feel that a wrong decision has been made in your case before the Family Court or the Federal Circuit Court of Australia, you might consider filing an appeal in the Full Court of the Family Court to challenge the decision made by the judge. An appeal is not a rehearing of the original dispute; rather you must prove there is an error in law and a miscarriage of justice. In other words, for your appeal to succeed you must convince the Full Court that the Family Court trial judge or Federal Circuit Court trial judge made an error in law and the decision should be set aside.
It is important to seek immediate legal advice soon after a decision is made if you are considering filing an appeal. A Notice of Appeal must be filed in the Family Court Appeal Registry within 28 days of an order made by a judge sitting in the Family Court or Federal Circuit Court of Australia. You must also serve the filed Notice of Appeal on the Respondent and any other parties involved in those proceedings.
Within 28 days of filing the Notice of Appeal, you as the appellant must file a draft index to the appeal books. If the index is not filed within this time, the appeal is taken to be abandoned. After the draft index is filed, the appeal is listed for a procedural hearing. A procedural hearing is a hearing when orders will be made as to the preparation of the appeal for hearing and for the filing of any necessary documents (including any appeal books).
Appeals are listed for hearing before the Full Court (three judges of the Family Court). The Chief Justice may however, direct that an appeal from a Federal Circuit Court judge be heard by a single judge.
Does filing an appeal stop the orders?
The answer to the above question is NO. Just because you file an appeal to the Family Court of Australia seeking to set aside orders does not mean they are automatically stopped, suspended or “stayed”. Filing a Notice of Appeal does not automatically affect the orders made by the Judge or Registrar (except where the order is a divorce order). This means that both you and the other party affected by the orders must obey the orders, even if you have filed an appeal.
If you want to stop the enforcement or effect of the orders (or put a ‘stay’ on the orders) until your appeal is decided, you must file an Application in a Case to stay the Orders and include a supporting affidavit. That application can only be filed after the Notice of Appeal has been lodged with the Registry.
Appeals are complex hearings that deal with questions of law. They require careful attention to the transcript of proceedings, reasoning of the judge, and evidence admitted into evidence. In addition, it also requires a deep understanding of the law and knowledge of your case. Whether you are the Appellant or Respondent in an appeal, the result of an appeal hearing could have significant impacts to the just results of your case.
At KF Lawyers Australia, we have experienced family lawyers, and a panel of esteemed junior and senior barristers, who are familiar with appeal proceedings in the Family Court of Australia and Federal Circuit Court of Australia. We take the time to break down the complexity of the appeal process for you and provide thorough advice along the way to seek to ensure you have not suffered a miscarriage of justice. If you wish to discuss your options, please contact KF Lawyers Australia for a free initial consultation.