Family Law Appeals NSW: When & How to Challenge a Decision

The family law appeals process can be challenging and overwhelming for anyone involved. However, this does not mean that you should not exercise your right to challenge a decision if you have the grounds to do so. This article will explain exactly when and how you can appeal a family law decision.

Critical Facts You Should Know:

Before considering an appeal, understand that family law appeals are relatively uncommon in Australia. However, of those that do proceed, approximately 50% are successful. This doesn't mean you should appeal every unfavorable decision. The discretionary nature of family law judgments and the strict requirements for establishing grounds make appeals appropriate only in specific circumstances.

When NOT to Appeal:

You cannot appeal simply because:

• You are dissatisfied with the outcome
• You believe another decision would have been better
• You disagree with how the judge weighed the evidence
• You want a "second chance" at presenting your case

When You CAN Appeal:

Appeals are only appropriate when the court made an error so serious it amounts to a miscarriage of justice. You must have legitimate grounds based on legal error, not mere dissatisfaction with the result.

Why This Article Matters:

This guide will explain exactly when and how you can appeal a family law decision, the strict court procedural requirements you must meet, and the critical considerations you need to evaluate before proceeding.

What is an appeal?

An appeal is the process of challenging a decision made by a judge or registrar. The appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) hears family law appeals. An appeal is not a retrial, but rather a review of the lower court’s decision to determine whether any legal errors were made. You must ensure you have the grounds to appeal- it is not enough that you are simply dissatisfied with the decision.

What an Appeal IS:

• A review of the lower court's decision to determine whether any legal errors were made
• An examination of whether the law was correctly applied
• A process to identify procedural irregularities or miscarriages of justice

What an Appeal is NOT:

• A retrial of your case
• An opportunity to present new evidence (generally)
• A chance to re-argue facts already considered
• A forum to simply express dissatisfaction

The Burden of Proof:

You must ensure you have the grounds to appeal, it is not enough that you are simply dissatisfied with the decision. The burden is on you to demonstrate that a significant legal error occurred.

What are the grounds for appeal?

To successfully appeal a family law decision, you must establish one or more of the following grounds. Each ground requires specific evidence and legal arguments:

1. Errors of law: occur when the lower court misinterprets or misapplies the relevant law, resulting in an unjust decision.
2. Errors of fact: occur when the lower court makes factual findings unsupported by evidence presented in your case.
3. Procedural irregularities: occur when the lower court breaches procedural rules or principles which have impacted the fairness of the proceedings.
4. Miscarriage of justice: occurs when the higher court determines that the lower court’s decision was grossly unjust.

To ensure you can establish one or more of these grounds, you must gather evidence to support your claims, to present a compelling argument to the court.

Understanding the Two Different Appeal Pathways

Before proceeding with an appeal, you must understand that the process differs significantly depending on who made the original decision:

PATHWAY 1: Appealing a Judge's Decision

• Requires filing a Notice of Appeal
• Must demonstrate legal error
• Review is limited to the record (no new hearing)
• Higher threshold to succeed

PATHWAY 2: Reviewing a Registrar's Decision

• Requires filing an Application for Review
• Does NOT require proving legal error
• Complete rehearing (hearing de novo) by a judge
• Lower threshold but carries risks

Why This Distinction Matters:

The pathway you take determines:

• What documents you file
• What you need to prove
• The timeframes involved
• The nature of the hearing
• Your chances of success

Next Sections: We'll examine each pathway in detail, starting with the more complex process of appealing a judge's decision.

The Process of Appealing a Decision by a Family Court judge

Appeals from decisions made in Division 2 of the Federal Circuit and Family Court of Australia (FCFCA) are heard by Division 1 of the FCFCA. Division 1 is the appellate jurisdiction with the authority to review and overturn lower court decisions.

1. Complete and file a Notice of Appeal. This must state:

Whether you are applying for leave to appeal and the facts you are relying on to support your leave application; Whether you are appealing all or part of the orders; The grounds of appeal you are looking to establish; and The specific orders you want the judge to make, should the appeal succeed.

Time limit: the Notice of Appeal must be filed on the Commonwealth Courts portal no later than 28 days after the orders in the original trial were made. This notice must be served on the other parties to the proceedings or their lawyers, including any independent children’s lawyer, within 14 days of filing. If you are seeking an extension of time to appeal, you must file an Application in an Appeal and an affidavit attaching your draft notice of appeal. These must be filed and served on the other parties or their lawyers, including any independent children’s lawyer. To determine whether this application is successful, a judge or registrar will take into account:

• Whether there is a substantial issue to be determined in the appeal;
• The reasons for and length of the delay;
• Any disadvantage the delay has caused to the other party; and/or
• The overall justice of the case.

2. The respondent may decide to cross-appeal

The respondent is able to do so if they believe the judge or registrar made an error. They must file a Notice of Appeal on the Commonwealth Courts portal however, this will be recorded as a cross-appeal.

Time limit: The notice must be served on the appellant or their lawyer and any other party no later than 14 days after the appellant serves their Notice of Appeal or within 28 days of the orders being made. The respondent may also be granted an extension of time by way of court order.

3. File a Draft Index to the Appeal Book.

This contains the relevant documents and evidence from the original proceedings.

Time limit: you must file and serve the index within 28 days of filing the notice of appeal or notice of cross-appeal. However, if no reasons for the judgment were provided at the time the appealed orders were made, the time limit is extended to 28 days after the reasons for the judgment are issued.

4. Procedural hearing

After the draft index is filed, the parties will be notified of a hearing date by the Appeal Registry. During the procedural hearing, there will be orders made about:

• The contents of the Appeal Book including when it should be filed. This is to be prepared in electronic form, usually by the appellant. 
• The filing and serving of parts of the transcript that may be relevant to the appeal. This is usually completed by the appellant.
• The filing of a summary of arguments by each party and a list of authorities.

The likely hearing date will also be discussed at the procedural hearing, if it is known.

Time limits: the appeal book and transcript must be filed by the date ordered at the procedural hearing, otherwise the appeal will be abandoned. The parties must also file and serve a summary of arguments and list of authorities. Then, the parties will be advised of the hearing date.

5. Appeal hearing

Before this commences, ensure you have prepared well-researched and persuasive written submissions to address each ground of appeal you seek. Gather relevant evidence used in the initial trial such as witness statements, expert reports or financial records to support your case.

Possible Outcomes if Your Appeal Succeeds:

If the appellate court finds in your favor, they have several options:

Option 1: Re-Exercise the Discretion

What This Means: The Full Court makes a new decision, replacing the incorrect decision.

When Used:

• When the facts are clear and undisputed
• When the only issue was legal error
• When the court can readily determine the correct outcome

Result: New final orders are made by the appellate court.

Option 2: Remit for Re-Hearing

What This Means: The matter is sent back to the lower court (Division 2) to be re-heard by a different judge.

When Used:

• When new factual findings need to be made
• When evidence needs to be re-evaluated
• When the matter is complex and requires detailed consideration
• When credibility assessments are necessary

Result:

• You get a fresh hearing before a new judge
• Original orders may be stayed pending re-hearing
• Can be costly and time-consuming
• No guarantee of better outcome

Option 3: Partial Success

What This Means: The appellate court finds error on some grounds but not others.

Result:

• Some orders are changed
• Others remain in effect
• May achieve partial improvement in your situation

If Your Appeal Fails:

Consequences:

• Original orders remain in full effect
• You may be ordered to pay costs
• Matter is concluded (subject to possible High Court appeal in rare cases)
• You must comply with original orders

Cost Orders: If unsuccessful, the court may order you to pay:

• The respondent's legal costs for the appeal
• Court costs
• Can be substantial (tens of thousands of dollars)

The process of appealing a decision by a registrar

If a judicial registrar initially heard your case, you must file an Application for Review. Unlike hearings by a judge, you do not need to show there was a legal error. Instead, the application will be reheard by a judge who can make the same decision, or a completely different one.

Time limit: An Application for Review must be filed within 21 days of the original decision.

Conclusion

The process to appeal may be daunting, considering the specific time limits and requirements to be met. The Most Important Decisions:

1. Don't Make Emotional Decisions: Take time to process your emotions before deciding. Anger, hurt, and desire for vindication are poor decision-makers.
2. Get Professional Advice: The cost of advice is minimal compared to the cost of a failed appeal. Always consult a specialist.
3. Be Honest About Your Motivations: Ask yourself: Am I appealing because there's genuine legal error, or because I'm angry/hurt/want revenge?
4. Consider the Long-Term: Think beyond the appeal. What will your life look like in 2 years? 5 years? Is this appeal worth the cost in those terms?
5. Protect Your Children: If you have children, their wellbeing should be paramount. Prolonged litigation harms children. Consider their best interests.
6. Know When to Cut Losses: Sometimes the best decision is to accept an imperfect outcome and move forward with your life.
7. Remember: You Control This Decision You are not required to appeal. You can choose to accept the decision and invest your time, money, and energy in building your future instead.

With the help of an accredited family lawyer, this process will be significantly easier. If you require assistance, do not hesitate to contact the Norton Law Group, where a lawyer can assist you in filing documents and gathering relevant and persuasive evidence needed for your appeal.

The family law appeals process is complex, costly, and risky. But with the right information, professional guidance, and careful consideration, you can make the decision that's best for you and your family.

Whether you choose to appeal, seek alternative resolution, or accept the decision and move forward, Norton Law Group is here to help you navigate this challenging time and secure the best possible outcome for your future.

Contact Norton Law Group today for a confidential consultation.

Don't face this decision alone. Let our expertise guide you through this critical choice.