Hi Dragonfly,

For an appeal to be successful, you must convince the Family Court judge that the Federal Circuit Court judge made an error, this is outlined at FamilyCourt.gov.au

The judge:

• Does not consider any evidence or information that was not before the Federal Circuit Court judge, except in special circumstances
• Does not hear witnesses giving oral evidence
• Reads all the relevant documents that were filed by the parties for the original hearing before the Federal Circuit Court judge and the relevant parts of the transcript of the proceedings
• Takes into account the written summaries of argument, and
• Listens to legal argument from both sides.

As the appellant, you need to convince the Family Court judge that the Federal Circuit Court judge made an error such that the decision should be set aside.

In order to do this you must persuade the Family Court judge that the Federal Circuit Court judge:

• applied a wrong principle of law, or
• made a finding of fact or facts on an important issue which could not be supported by the evidence, or
• exercised his or her discretion to arrive at a decision which was clearly wrong.

A finding of fact is, for example:

• a finding that a certain event did or did not occur
• that something was said or not said, or
• that something has a certain value (for example, your house).

A Federal Circuit Court judge exercises discretion when the result of the case does not depend on a fixed rule, but where the Federal Circuit Court judge has to weigh up a number of different factors, all of which are of some relevance to his or her decision. To succeed on appeal, it is not enough for you to show that another judge might have formed a different view on the facts or decided the case differently.

For example:

• In a financial case, there is a margin within which the Court has a range of decisions open to it; all of which will be legally valid or acceptable.
• In a parenting case, matters may be so finely balanced between the parties that the judge could decide in favour of either party, without being in error in a legal sense.

If the Federal Circuit Court judge accepted the evidence of one party in preference to that of the other party, the Family Court judge will be reluctant to take a different view because, unlike the Federal Circuit Court judge, he or she does not see and hear the parties or their witnesses giving evidence.

The best way to understand errors in law that Judges have previously made is to read case law, you can use legal databases such as Austlii to locate them.

This case may be helpful in demonstrating how to set out grounds of appeal from the Judges error in decision, in Matenson & Matenson (2018) the father made written submissions as well as oral submissions to make clear his central contention, Murphy J identified  'that his case was not in fact heard or determined.  In addition, he remains entirely unclear why her Honour ordered that “all interim applications be dismissed”. Expressed in more familiar language, it is asserted that her Honour’s reasons are manifestly inadequate.’ [Para 14]

Held: 'With respect, her Honour did not at all engage with the issues presented to her for interim determination and provided no reasons for her decision.  The appeal must succeed.'