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Family Law

The difficulty of launching an appeal against a court decision

By March 9, 2016No Comments

By Gianna Huesch

If you have been to court and are unhappy with the final outcome, it can be tempting to look for whatever reason you can find to appeal the decision. However, unless the judge in your case has made a clear error and the decision is plainly unjust, it can be an expensive exercise in futility. It’s important to have your solicitors advise you on the likelihood of you successfully appealing your court decision before you risk incurring more fees and costs and ultimately still being unsuccessful.

Sometimes you may feel that the trial judge has not given enough consideration to a particular aspect of your case. You may feel that “insufficient weight” was given to the issue, and that appeal court judges may give that issue more consideration. The difficulty is that if this is essentially the only grounds of appeal you have, you are unlikely to succeed in your case.

A recent case heard by the Full Court of the Family Court of Australia illustrates this difficulty. In Luo & Liew (2016), a mother appealed against final parenting orders, seeking that her teenage son be moved from living with his father in Sydney to living with her in Melbourne.  However in his judgment the appeal judge pointed out that “appellants who seek to challenge a discretionary judgment based upon the weight given by the trial judge to various factors face a difficult task.”  There has to have been some error made in exercising the discretion, for example acting on the wrong principle, allowing extraneous or irrelevant matters to guide or affect them, mistaking the facts or not taking into account some material consideration. The final decision has to be unreasonable or plainly unjust, otherwise it is only a difference of view as to weight, which isn’t enough to arrive at a different conclusion and justify reversal of a decision.

In this case the mother, who represented herself, felt the trial judge had given insufficient weight to the child’s views and to health and parenting-style issues. A number of the issues raised by the mother at appeal were in fact new submissions which hadn’t been made during the trial, and as such, the appeal judge was forced to dismiss those matters. This is a useful reminder of the importance of not attempting to raise matters on appeal that weren’t raised before the trial judge, as those points simply cannot be taken into consideration. Certain other criticisms the mother made of the trial judge related to numerical and date errors, which the appeal judge found to be irrelevant and “did not justify interference with the trial judge’s decision”.

The remaining grounds of appeal the mother raised centred around the boy’s own views not being given sufficient weight, given he was of an age where increasing weight is afforded to such views, as well as a criticism of the trial judge failing to give enough weight to issues around the father’s parenting and the child’s alleged consequent health problems.  

Unfortunately for the mother, the child had in fact indicated his desire to live with both parents, not preferencing one over the other. Instead he “presented as a child who wants to be evenhanded and non-partisan” even if he was lonely for his mother and wished he could see her more often.

Similarly, on the health issues, the appeal judge found that the trial judge had not erred in arriving at his decision. The mother had argued the boy lived mainly on junk food and that she would be able to better raise him. While the trial judge noted the boy would “probably benefit from more parental direction in his father’s household as to bed time and attendance to his school work and more focus being directed to his diet”, in the absence of expert evidence presented by the mother, the trial judge was left to conclude only from observation of photos that the child had his father’s heavyset body type. More importantly, the father had in fact sought medical assistance regarding the weight issue. As such, the mother had failed to prove that the father was neglectful, so the trial judge’s findings were open to him.

 

In this case, the trial judge did not find that child should be moved to Melbourne to live with mother as it would be “change for change’s sake” with no benefit either way, so a change was not ordered. And the appeal judge found that the trial judge had not erred in making that decision.

A final takeaway from this case relates to timing. The disputed parenting orders had been made in 2009, yet the mother only sought to challenge them in late 2013. During this time the boy had formed a number of “relationships of value” while living with his father, and these were found to be a “significant factor of the trial judge’s reasoning process”. As such, even if the mother had successfully argued that the 2009 orders were made in error, there is a real likelihood the courts would have still refused to order the boy’s residence be changed.

Do you need assistance with a parenting matter, or advice on appealing a court decision? There are strict time limits in place for filing an Appeal so please call Cristina Huesch or one of our solicitors here at Alliance Family Law as soon as possible if you are considering an Appeal. You can contact Alliance Family Law on (02) 6223 2400 for guidance—your first no-obligation conference is free.

(Source: http://www.austlii.edu.au/au/cases/cth/FamCAFC/2016/26.html)

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