While many family law matters are able to be resolved by agreement, there are some matters that require a decision to be made by a Judge of the Federal Circuit and Family Court of Australia. In the event a Judge is required to make a decision, they will usually provide written reasons in support of their decision.
Parties who have received judgment in their family law matter have a period of 28 days from the date judgment was received to file a Notice of Appeal in the event they feel that the Judge has made an error such that a “miscarriage of justice” has occurred. There are strict rules that must be complied with in the event a judgment is appealed; you should seek specialist family law advice before filing a Notice of Appeal.
Of course, there are some circumstances where a Notice of Appeal is sought to be filed after the 28-day period mentioned above has lapsed. This is known as filing “out of time”.
In the event a party wishes to file a Notice of Appeal out of time, the appellant must first apply for leave to appeal out of time.
The High Court case of Gallo v Dawson [1990] sets out the principles that the Full Court is required to consider when looking at an application for leave to file a Notice of Appeal out of time.
Those principles require the Full Court to consider its discretionary power to extend the time for filing a Notice of Appeal in the event the appellant can satisfy the Court that strict compliance with the 28-day rule would result in an injustice between the parties. When considering this:
A. The Court requires the appellant to show that an injustice will occur in the event the appeal does not proceed. The appellant does not need to show, at this stage, the deficiencies in the Orders that they seek to appeal; and
B. The Court cannot grant leave to file the Notice of Appeal out of time on the basis that the Court has doubts about the correctness of the Orders that are sought to be set aside.
As such, the first question to be determined by the Full Court is “has the applicant established that there is a substantial issue to be raised on appeal?”.
1. If the answer to this question is “no”, the then application for leave to appeal out of time must fail; however,
2. If the answer to this is “yes”, then the Court needs to consider:
a. The extent of the delay, and the reasonableness of any explanations offered with respect to the delay;
b. The history of the proceedings, and the conduct of the parties throughout;
c. The prejudice to each of the parties if leave was and was not granted for the appeal to proceed out of time; and
d. The need for finality to the ongoing litigation.
No two family law matters are the same, and while there can sometimes be similarities between cases each case must be assessed based on its own facts and circumstances. In the event you are considering filing a Notice of Appeal out of time you should first obtain specialist family law advice in relation to the evidence that you can give in support of your application for leave, and the prospects of your leave application being successful.
It is important not to delay in the event you are considering filing an application to appeal out of time.
Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Peta Sutton