Salutary warning to anyone contemplating an appeal

Full Court of the Family Court confirms established law as regards Appeals

Care should be taken before launching an appeal

A recent decision of the Full Court of the Family Court of Australia, in August 2019, confirms a well-established legal principle, which should be a warning to anyone contemplating launching an appeal process. Serious consideration should be given to the prospects of success on appeal, before embarking on the process.

In the case of Daly & Terrazas, handed down by the Full Court of the Family Court of Australia, in August 2019, the Full Court confirmed the established legal principle, that the bar to a successful appeal is set very high, in the case of a challenge to the exercise of discretion by a lower court Judge.

In the property settlement the primary Judge exercised her discretion and assessed the wife's contribution at 20%. The husband appealed to the Full Court of the

Family Court, claiming the primary Judge made an error in assessing the wife's contribution at 20% and failed to give proper reasons.

The Full Court reiterated the well-established principle of law, enunciated in the case of CDJ v VAJ (1998) 197 CLR 172 in which his Honour Justice Kirby stated:

" … Neither this court, nor the Full Court … has authority to disturb a decision … simply because the appellate Judges, faced with the same material, would have reached a conclusion different from that under appeal. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate … the court below had acted on a wrong principle … or had reached a conclusion which is plainly wrong. … Obviously what is plainly wrong will vary in the eyes of different beholders …".

The husband's appeal was dismissed on the basis that the primary Judge had exercised her discretion and this should not be disturbed on appeal.

"Cautionary lesson on Appeals …"

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Jane Ekin-Smyth

Jane Ekin-Smyth

Consultant
Stephen White

Stephen White

Partner