Should I Appeal?

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We are asked this question often – thankfully it does not usually come from our clients but from other prospective new clients who have been upset at outcomes in the Family Court or Federal Circuit Court. Whether it relates to a property or parenting matter, they have spent a lot of money and received what they perceive to be a poor result. Normally, the answer is NO.

Unfortunately, in parenting and property matters we have a system that is largely discretionary. In property matters, you will often hear us talk about a range of possible outcomes. This is because on any different day, different Judges can have different views about a range of possible outcomes based on contribution adjustments in percentage terms and adjustments pursuant to Section 75(2) factors. Further, the Court has the discretion to make an Order that is just and equitable in all the circumstances.

Therefore, we often read judgments and see matters where we would have had a different view and we think the outcome is wrong. For instance, there may be a case where we feel strongly that our client was entitled to 70% but they only received 60%. The problem with this is that on appeal the Full Court of the Family Court is likely to say that 60% was an outcome within a range of reasonable outcomes and is not appealable simply because they would have reached a different decision.

The same can unfortunately be said about parenting matters and outcomes – we also have a highly discretionary system that allows Judges to make Orders in particular cases based on particular circumstances that are in the best interests of the child. Whilst there are various sections that a Judge has to consider when weighing up their decision, it is without doubt that a Judge has a wide discretion as to which matter to place importance on and which matters not too. We find that parenting matters are even more difficult to appeal successfully than property matters.

However, all cases are different and in some matters there certainly are prospects of an appeal being successful, especially where there is an obvious error of law. However, in the majority of cases we deal with appeals are very unlikely to succeed in the Family Court system.

Another significant problem with an Appeal in the Family Court system is that often, even if successful on Appeal, the Appeal Court will direct that the matter be remitted for re-Trial before a different Judge. Nothing could be worse for a client then having to go through the whole process again. Usually, it may have taken two to four years to reach a Trial in the first place and a client may have spent well in excess of $100,000. Nothing could be worse than to get a successful appeal outcome, only to then have to go through the process of a Trial again.

This is why good family lawyers look to spend a lot of time proactively on their client’s matters very early on and get the matter ready for Mediation in a proper and substantial way so that there are good prospects of settling the matter within a three to six month time frame rather then engaging in the Court process.

In some situations, unfortunately, Court litigation is necessary due to delays by the other party or due to the need to protect a client’s position, but in most cases a mediated outcome early on will be the best outcome for clients.

Brett Hartley – Accredited Family Law Specialist

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