Can I Appeal?

Often we get asked – If I don’t get the result I want can I appeal? – Short answer is No, but there are circumstances where appeals in the Family Court are valid.

In family law, if a matter is not able to be resolved by agreement, then the Family Court (or the Federal Circuit Court) can make a decision about the matter, including property division and parenting issues. The vast majority of cases are able to be resolved by agreement at some point before a Judge is required to make a final decision, but sometimes this is the last resort.

The Court process can take more than two years to be finalised. After the final hearing, the Judge will deliver his/her decision. This can often be months after the trial.

After the decision is handed down by the judge, we are often asked “can I appeal?” or “can the other party appeal?”

In most cases, the answer will be “no” or more specifically “yes you can file an appeal but they are difficult to win, and if you don’t then you may have to pay some of the other side’s legal fees”. However there is a process for appeals and a narrow set of circumstances in which an appeal against a decision can be made.

Firstly, unless an extension of time is granted, the appeal needs to be made within 28 days of the decision.

Secondly, it is not enough that one party disagrees like the decision, to establish a successful appeal, it normally needs to be shown that the trial judge made a legal error. Appeals are not a means of getting a “second opinion” from different judges on the trial judge’s decision. This does not mean that there was a typo in the date of birth of your child, or that the Judge misunderstood one of your arguments. If there are grounds for an appeal, the decision will be reviewed by one or more of the Judges of the Family Court.

If you have received a decision that you think may contain a legal error, it is essential that you obtain urgent legal advice so that, if you decide to appeal, you do so within the time limit. Please contact us if you think you may have the grounds for a family law appeal.

Victoria Blakeley

Victoria Blakeley is a Senior Solicitor in our Canberra office.