During an appeal hearing, the appellant must convince the judge that the trial judge made an error in his or her exercise of discretion, in the original decision. Such errors can take the form of a mistake in facts, the use of a wrong principle, and allowing interference of extraneous or irrelevant factors. An appeal is not a rehearing of the original dispute. There are no witnesses called. The only evidence which is admissible is that which was before the trial judge.

An important fact to keep in mind is that filing for an appeal does not render the original orders ineffective. These orders continue to be effective, and both parties must obey them until new orders are made.

Most appeals are lodged with regards to parenting orders.

Any person who is directly affected by the orders sought in the Notice of Appeal will become a respondent to the appeal.

Appeal Books

Appeal books are a complete collection of documents required for the appeal. The documents to be included, as recommended by the Family Court are:

– Notice of Appeal
– Orders appealed against
– Reason for judgment of the judicial officer
– Any relevant precious or subsequent order (for example, a stay of the judicial officer’s orders)
– Relevant application, response, affidavits and other documents in order of filing
– Any family report
– Relevant transcript
– List of all exhibits
– Copies of relevant exhibits (where necessary).
Appeal books must not mention any offer to settle. These are required for the court hearing.

Specific Requirements

There are some specific requirements for consent orders and different parts of the appeal process. If these requirements are not met, then the appellant risks the court ruling that there is no argument in the outline due to it being incomplete.

Specific requirements include time limits and the requirement that the orders sought must not be more than 10 pages in length.

Appeals from the Federal Magistrates Court of Australia

Before the appeal proceeds, the Chief Judge must turn his or her mind to each appeal and decide whether it should be heard by the Full Court of the Family Court of Australia, or a Single Judge of the Family Court of Australia. The review procedure must take place in the Federal Magistrates Court before the appeal to the Family Court.

If an appeal is heard by a single judge, no appeal can be made to the Full Court. The next step in the appeal process is a hearing in the High Court of Australia, provided that the matter is eligible to be heard in the High Court.

Appeals to the High Court of Australia

Not all appeals made to the High Court will automatically proceed to a hearing. Special leave must be granted by the High Court to hear appeals. The application for leave must be lodged within 28 days after the judgment being appealed was announced.

In deciding whether leave is to be granted in order to hear matters before the High Court, according to s 35A of the Judiciary Act 1902 (Cth) the court must give regard to:

– Whether the proceedings relate to a question of law that is of public importance, due to its general application or otherwise

– Whether the proceedings relate to a question of law in respect of which a decision of the High Court, as the final appellate court is required to resolve differences of opinion between different courts or within one court, a to the state of law

– Whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application applies.

Author Bio: Elizabeth Lane has many years experience working with the Family Lawyers Wollongong Prime Lawyers Wollongong.

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