What is a family law appeal?
A family law appeal is when you ask the Court to set aside a decision made by a judge at first instance. A family law appeal is not a rehearing of the original dispute. For your family law appeal to succeed you must convince the Court that the trial judge made an error.
You start your family law appeal by filing a Notice of Appeal within the required time frame. Normally this means within 28 days of the making of the appealed orders. In special circumstances, you can obtain an extension to apply out of time.
Which court hears appeals?
On 1 September 2021 the Family Court of Australia (FCoA) and the Federal Circuit Court of Australia (FCC) merged to create the Federal Circuit and Family Court of Australia (FCFCOA). As a result there are new Family Law Rules and new Practice Directions. For appeals, the most relevant practice direction to refer to is the Family Law Practice Direction – Appeals. The changes have affected the way that family law appeals will be managed by the Court.
The Court will have two divisions, the superior Division 1 and Division 2. There will be no separate Appeal Division. A single national appeals filing registry will also be introduced to provide a centralised and nationally consistent method of filing an appeal.
Division 1 of the Court will hear family law appeals. All Division 1 Judges will be able to hear appeals either as a single Judge or as part of a Full Court. All appeals from Division 2 decisions will be heard by a single Judge, unless the Chief Justice considers it appropriate for the appeal to be heard by a Full Court.
Fixed fee family law appeal
Jano Family Law are able to provide you with a fixed fee for your family law appeal on a stage by stage and scope of work basis. Please see our Fees page for more details.
What are my chances of success?
The Court publishes statistics which track the outcomes of family law appeals. In 2019-2020, a total of 448 appeals were finalised. Of these, 130 appeals were allowed (successful). This means that the Court found that in 130 cases the trial judge made an appellable error.
We have seen that in 2019-2020, 29% of all appeals were allowed. However, if we exclude from consideration those appeals which were voluntarily abandoned, withdrawn, or resolved by agreement, a very different picture emerges. In 2019-2020, of those appeals which actually reached the stage of being decided by the appeal judges (275 appeals), a full 47% of the decided appeals were successful.
Clearly many appeals should not have been lodged in the first place. It is extremely important that you obtain assistance from family law counsel experienced in appellate work, before filing. However, of those appeals which were correctly identified as having reasonable prospects of success, a full 47% were successful.
Should I appeal my family law judgement?
In 2019-2020, 130 appeals were allowed, this year your appeal could be one of those. Before filing a family law appeal, you should seek legal advice from an experienced family lawyer. You also need the advice of counsel who regularly undertakes family law appellate work. This is not a decision to be taken lightly and your lawyer and counsel will need to devote sufficient time and careful mental effort to give you an opinion as to whether you have reasonable prospects of success in pursuing an appeal.