To Appeal or Not to Appeal, That is the Question

After a final judgment is made in a family law case, the parties have a short period of time in which to lodge an appeal and should consult with a family lawyer immediately afterwards to avoid missing out on a potential right to an appeal. Often clients will notice factual mistakes in judgments that occur for a variety of reasons. However, even when there is a clear factual error and everybody agrees that this is a mistake, this does not necessarily mean that the whole decision is invalid or an ‘appeal should be allowed’.

A recent decision in the matter of Henley (http://www.austlii.edu.au/au/cases/cth/FamCAFC/2017/142.html) illustrated this point. In that case, the Judge who heard the case got it wrong in their judgment about where the father lived. The father was said to live in a particular town when he in fact lived in another suburb quite close to the mother’s house.

On the face of it then this would appear fairly significant – that the father’s place of residence would be important in deciding where a child is to live. However Full Court of the Family Court found that this mistake did not “lead into substantive error”. Because there was no suggestion by the parties that the Father’s residence would make travelling between their houses impracticable, the Judge was not “led into error” by his erroneous factual finding.

This is important to emphasise when considering an appeal; you may be very right that there is an error, but has this error actually led to a decision being made incorrectly? It is important that you get considered, experienced legal advice before lodging your appeal because these can be very expensive and complex applications, and if you get it wrong, you can face serious costs issue. Call us now on 03 9614 7111 or email Melbourne@nevettford.com.au