What is an Appeal?
If you’re unhappy with the outcome of a judge’s decision in the Family Court, there maybe circumstances where you can lodge an appeal. But what does that mean? Let’s take a look at the meaning and process of lodging an appeal.
What is it?
An appeal is a request to have your family law matter reviewed by a higher court.
You ask the appeal court to set aside a decision made by the Federal Circuit and Family Court of Australia judge. (i.e. usually Division 2)
It’s important to note that an appeal is not a rehearing of the original dispute. You must convince the appeal court that the original judge made a mistake.
How does it work?
A Notice of Appeal must be filed within 28 days of an order made by the original judge, and you – the appellant – must pay a filing fee.
Appeals are listed for hearing before either a single appeal judge of the Federal Circuit and Family Court of Australia, or a Full Court, which is three judges.
Does an appeal stop the original court order?
No, it doesn’t. Filing a notice of appeal does not automatically affect the orders and this means that both you and the other party must obey the original orders, even if you have filed an appeal.
If you want to stop the operation of the orders until your appeal is decided, you must also file an Application in a Proceeding to stay the orders (supported by an affidavit).
Who has to know about the appeal?
In short, everyone involved in the case. You must serve the Notice of Appeal on the respondent and all other parties to the proceedings, including the Independent Children’s Lawyer (if there is one?), within 14 days. This can be done by post or by hand, but you cannot serve the papers on the other person yourself.
How much will this cost me?
Before deciding to appeal, it is important to be aware of the costs involved. Including:
- A filing fee – in some cases a reduced fee may be offered for a divorce application, or if you have certain government concession cards, or you can demonstrate financial hardship.
- The cost of a transcript of the proceedings. Each appellant buys transcripts at their own cost. Transcripts are provided by an independent service provider and there is no fee reduction available for this charge.
- If you are legally represented, you will need to pay your own legal costs.
- If your appeal is unsuccessful or dismissed, it is likely that the court will order you to pay some or all of the other costs of all other parties to the appeal.
Will I need legal advice?
You will almost certainly need independent legal advice. Even if you propose to conduct an appeal yourself, it is important to obtain legal advice on whether you have valid grounds to appeal.
An appeal will only be successful if the judge has not applied the law correctly and you must be able to convince the appeal court of how the law should have been interpreted.
A lawyer will:
- Define whether you have a legal issue suitable for consideration on appeal
- Provide practical options available to you
- Explain the costs involved in appeal litigation
Michael Lynch Family Lawyers can offer advice tailored to your individual circumstances. Before deciding to appeal a court decision, please make an appointment to speak with one of our family law specialists. Call: (07) 3221 4300 or email: [email protected]
