We often see clients who ask for a second opinion about their family law matter and seek advice regarding their options to appeal after a judge has made an unfavourable decision. In this video, CGW family lawyer Tiana Harris talks us through your options.
Hi, I’m Tiana, and I’m a lawyer here in the family law team at Cooper Grace Ward.
I don’t agree with the judge’s decision – can I appeal?
Sometimes we have clients that come to us who are not happy with a judge’s decision and they want to discuss their options. First, it is important to note that it is quite difficult to successfully appeal a judge’s decision. An appeal is usually heard before the Full Court, which is three judges and you need to convince them that the trial judge made a decision that was wrong at law or of fact, or the trial judge exercised their discretion in a way that was clearly wrong.
In family law, a lot of our matters are discretionary. So, when a judge is making orders, they will consider the respective contributions of both parties throughout the relationship, and then they will come to a final decision, which is discretionary. When we advise clients in property settlements, we usually give them a range of what their entitlements are. So 50% to 60%. If for example, the trial judge has given you 50% of the property pool and you wanted 60%, even if the Full Court agree that you should get 55%, they will not overturn the trial judge’s decision because they were exercising their discretion.
What is an appeal?
An appeal is not a rehearing of evidence. You will generally not be allowed to put people in the witness box and cross-examine them, and you will not be able to file further affidavits with further evidence. It’s also important to note that filing for an appeal does not stop the previous orders that were made by the trial judge. You must first file an application to stay those orders that the trial judge made, and that hearing will usually be heard before the trial judge who made those orders. We strongly recommend that you obtain legal advice before considering filing an appeal. There are quite strict rules and timeframes that you must abide by. In addition, if you are unsuccessful, it’s very likely that you’ll be ordered to pay the other party’s costs of the appeal.
What should I do now?
Please do not hesitate to contact me or one of the other family lawyers in the team if you wish to discuss your prospects to appeal a decision.