What If You Don’t Like A Judge’s Order?
Every day the Family Court makes decisions in all sorts of cases. Many people are dissatisfied with the decisions the court makes. For those that are dissatisfied, what options do they have?
After the determination of a hearing, whether it is an interim or final hearing a party may appeal the decision. The appeal needs to be filed within 28 days. In order to be successful in an appeal, a party must be able to show that there was either an error of law, a substantial error of fact which materially affected the judgment, or that the discretion of the trial judge miscarried to such an extent that the result was not possibly within the discretion of the court.
A recent case has considered an appeal of an interim parenting order.
- The parties had 3 children aged 7, 5 and 4. The mother alleged that during the parties’ marriage there had been instances of the father directing physical violence and verbal abuse towards the children. The father denied these allegations, saying that they had been made up by the mother.
- The parties entered into interim orders providing for the father’s time with the children to be supervised by a private contact centre representative on Wednesday afternoons and Sundays. The husband consented to these orders on a ‘without admission’ basis.
- 5 months after the making of the consent orders, the father sought to vary them. Specifically, he wanted an order for equal shared parental responsibility, that his time with the children increase and the supervision requirement cease. The father relied on reports from the supervisors that observed his interactions with the children to be “warm, loving and comfortable”.
- The mother sought an adjournment of the father’s application until the parties had attended upon the Family Consultant (which had been arranged for the next month) and that the interim orders (with the supervision) continue.
- After hearing from the parties, the judge was not satisfied that the evidence of the parties would lead to a conclusion that the ‘presumption of equal shared parental responsibility’ should not apply.
- The judge found in favour of the father and ordered the parents have ‘equal shared parental responsibility’ and that the father have a gradual increase of unsupervised time over a period of 6 months to provide for the children to spend time with him each alternate weekend, (Friday after school until Monday morning) and all of the school holidays.
- The wife appealed the orders seeking an order that the matter be re-heard before another judge. The primary ground of her appeal was the way the judge had considered the disputed family violence.
- The Appeal Court weighted up the evidence of the mother and the father and found that the judge did not fall into error by finding that there was no risk of harm to the children in taking into account the evidence of the supervisors that there was a good relationship between the father and the children.
- The appeal be dismissed, and
- The mother pay the father’s costs of the appeal.