After a court order finalises a matter (e.g. an order for a property division, parenting order, divorce order etc.), either party may still have a case to challenge certain decisions made by the court. Note that an appeal is not a rehearing of the dispute and for any appeal to succeed, you need to convince the appellate court that the original judicial officer made an error.
The appellate court generally will not consider any information or evidence that was not put before the original judicial officer first time around, other than in special circumstances, and they also will not call any witnesses to give evidence.
To succeed in an appeal, it is not enough to show that another judicial officer may have formed a different view or decided the case differently – you need to convince the court that the original judicial officer:
- applied an incorrect principal of law,
- put forward a finding of fact that could not be substantiated with evidence, or
- used their discretion to arrive at a wrong decision (the judicial officer will weigh up the various facts related to the decision and use his discretion when the case does not depend on a fixed rule).
Outcome of appeal
On a successful appeal, the appellate court may make a different order or order a retrial.
Before deciding to appeal against a judicial officer’s decision, you should take note of the financial implications:
- The cost includes a filing fee. (There are some concessions available in some circumstance like demonstrating financial hardship.)
- The cost of a transcript of the proceedings before the judicial officer. (Each party buys transcripts at their own cost.
- Should your appeal be unsuccessful, the court will likely order you to pay some or all the costs of all other parties to the appeal.
We highly recommend seeking legal advice before deciding whether to embark on an appeal. Shanahan Family Law can help you understand your legal rights and responsibilities and explain how the law applies to your specific case. We will carefully assess your situation. If you are contemplating an appeal, we recommend you obtain legal advice urgently as strict time limits apply, failure of which may prevent you from being able to lodge an appeal.