The Undesirability of Appeals in the Family Court

Recently, we have had a number of cases where parties have good prospects to appeal, but a decision has been made to not appeal due to other circumstances, including concerns about the appeal outcome and the costs of an appeal.

It is important to remember that in family law, we have a discretion-based system that often makes it harder to appeal from discretionary-based Judgments in both parenting and property matters.

Even when we receive Judgments that we believe are rough on our client, the question is always whether an Appeal would provide a better outcome.

In a lot of cases, the answer is no.  This is due in part to our growing lack of confidence in the Family Court in that it no longer has a formal Court of Appeal and many of the Judgments are head by single Judges of Division One.

In my view, this is severely impacting on the jurisprudence and development of law in the Family Court and without a specialist Court of Appeal, one starts to lose confidence in the quality of Appeal Judgments that are being delivered.

Whilst the Chief Justice has the power to convene a Full Court (three or five Judges) for the Appeal Court, it is to be noted that this happens only very rarely.

Most matters (over 90%) are heard on appeal by a single Judge of Division One.

However, probably the most compelling reason not to appeal lately in the Family Court is due to the cost of the appeal, and more particularly, due to the fact that in most cases, the Appeal Court will order a Re-Trial, rather than substitute its own decision in discretionary matters concerning property and parenting.

This means that clients have to endure a further Trial (before a different Judge), with the same subsequent delays and processes that they experienced previously when their matter was heard.  This can add years to the outcome and hundreds of thousands of dollars to the process.

This often creates a conundrum for our clients because on the one hand, we never find it advisable to settle at all costs or compromise unreasonably, but on the other hand, the impact of the uncertainty of litigation in the Family Court, places a significant weight on decisions to settle or not in an early stage of a family law matter.

At Hartley Family Law, we deal with this issue by collating as much information and documents from a client at an early stage so that we are able to give them strong definitive advice early in the negotiation process.  Whilst this sounds straight forward, it does help to maximise the prospects of a good settlement and not have issues arise in the future that catch us by surprise.