Every so often, a client will be so unhappy about the outcome of a hearing that they will ask whether it is possible to appeal. The Federal Circuit and Family Court of Australia have a clearly defined appeal process.
Appeals from both Division 1 and Division 2 of the court are to the Division 1 (Appeals) level. Appeals aren’t a re-hearing of the case just to see if you can get a “better” result from the appeals court. There are 3 broad areas, one of which must be satisfied for an appeal to be successful. They are:
- Appeals for an error of law – the appellant must persuade the full court that the primary judge made an error of law in their judgment.
- Appeals for an error of fact – the appellant must persuade the full court that the primary judge made a material error of fact finding in their judgment.
- Discretionary appeals – the appellant must persuade the full court that the primary judge made a discretionary error in their judgment. Because all judges have a broad discretion, these are the most difficult appeals to win. The test is not whether the full court would have come to a different result in their judgment. The appellant effectively has to show that no judge exercising the discretion could have reached the decision made by the primary judge.
If a party to a family law case wants to appeal, the first step involves the filing of a Notice of Appeal. Because running appeals is technical and complex, it is almost always the case that a barrister is briefed to prepare the notice of appeal.
Once the appeal is lodged, the court will fix a first listing date. The main job for the appellant for the first listing date is to prepare the Appeal Index. All of the documents to be considered by the appeal court go into what is known as the Appeal Book, and the appeal index is, unsurprisingly, the index of all the documents to go into the appeal book.
The documents to be included in the appeal book are all the court documents that were relied on by each side for the final hearing before the primary judge, the reasons for judgment and the final orders made by the primary judge and the transcript. The transcript is a printed version of everything that was said orally in the final hearing. The transcript is usually ordered once the notice of appeal has been filed. Once again, it is for the appellant to obtain the transcript.
On the first court listing of the appeal, the appeal Senior Judicial Registrar will confirm the appeal index. Orders will also be made for a date for filing the appeal book and dates for each party to prepare their summary of argument.
The summary of argument contains the arguments linked to each of the grounds of appeal and once again, preparation of the summary of argument is a job for the barrister briefed to appear at the appeal. The appellant has to file and serve their summary of argument first and the respondent to the appeal then files and serves their summary of argument.
At the hearing of the appeal, the argument is all about the grounds of appeal set out in the Notice of Appeal. Because of this, the hearing of an appeal takes much less time than the hearing of the original case. Depending on how many grounds of appeal are set out in the Notice of Appeal, the hearing of the appeal from, say, a 3-day hearing, will usually take half a day to a full day.
Appeals are very technical hearings and the art of running or arguing an appeal hearing is quite different to, say, the art of cross-examination. There are barristers who are known for their skill in appeal hearings, so often the barrister who appears at the appeal is not the same person as the barrister who ran the hearing before the primary judge.
Written by
Stephen Rugendyke
Special Counsel
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