LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

QLD Family Law Court - Unfair Property Settlement Order - Appeal?

Discussion in 'Family Law Forum' started by Junior, 1 February 2015.

  1. Junior

    Junior Well-Known Member

    Joined:
    13 November 2014
    Messages:
    70
    Likes Received:
    6
    I received the copy of the Family Law Court order in regards with the property settlement matter. The order that I signed, isn't fair for me. The solicitor that represent me did not check all the relevant documents I presented to her.

    Can I make an appeal to re-open the matter? The order has just passed for more than 30 days. Is there any limit or time to file an appeal? Is there any cost to pay to re open it?

    Thank you.
     
  2. Tracy B

    Tracy B Well-Known Member

    Joined:
    24 December 2014
    Messages:
    435
    Likes Received:
    70
    Hi Junior,

    An appeal of an order by a single judge of the Family Court needs to be made by application ("Notice of Appeal") within 28 days of the order: Family Court Rules 2004 rule 22.03. It appears you are outside of this time frame. You can apply for a time extension after this period. To do this, you will need make an "Application in an Appeal" supported by an affidavit stating:
    • Length of delay
    • Reasons for delay
    • Grounds of your appeal
    • Any disadvantage this may cause to the other side (and third parties involved)
    • Merits of your appeal
    • Overall justice of the case
    Note that an appeal will not look at facts that were not before the original judge (except in exceptional circumstances, e.g. lawyer negligence). An appeal is not a re-hearing of the case. An appeal is limited to:
    • The judge applied the wrong principle at law
    • The judge relied on a fact or facts to support a material issue when this was no supported by evidence
    • The judge exercised incorrect discretion
    Further, the error must have been so material that the result would be significantly different. If you are disputing a financial figure, there is a margin to allow for judge's discretion.

    In relation to costs, if your appeal is dismissed (i.e. you did not succeed), you pay the full costs of the appeal, if you succeed, the judge will make an order as to who pays the costs and you can apply to the court to issue costs against the losing side (i.e. the respondent).
     
  3. Junior

    Junior Well-Known Member

    Joined:
    13 November 2014
    Messages:
    70
    Likes Received:
    6
    Thank you @Tracy B for your response.

    I received an email sometimes last week ( Wednesday ) that the settlement date will be on Tuesday. I already given them a noticed that I will not be available on that day and asking them to move the date sometime next week. But they're so keen, I received an email last Friday asking me to be there or else they will ask the court and file a non appearance of the respondent (me). I don't know if that email came from a solicitor or personal assistant?
     
  4. Tracy B

    Tracy B Well-Known Member

    Joined:
    24 December 2014
    Messages:
    435
    Likes Received:
    70
    Hi Junior,

    Unless it is something unavoidable and extremely urgent, I would prioritise the settlement date as not showing up or attempting to reschedule/postpone it could come across as being uncooperative. Most correspondences are sent from a personal assistant or paralegal or clerk (similar to legal assistant) on behalf of the supervising lawyer. So you can interpret the letter as coming from the lawyer.

    If the settlement date is not court assigned by merely arranged by the lawyer, you should call the firm up and try and speak with the supervising lawyer. Explain to them your situation and ask politely to rearrange (since they did set the time unilaterally and if they were being cooperative, they should find a mutually suitable date). If they flat out refuse to reschedule, take a note of this as an indication that they are being uncooperative. It may be useful later on.
     
  5. Junior

    Junior Well-Known Member

    Joined:
    13 November 2014
    Messages:
    70
    Likes Received:
    6
    Thank you @ Tracy B,

    Unfortunately, the settlement date was pushed through without my presence. The orders provide that the transfer is to occur within 60 days. The other party said that they only complying with the orders and they are not prepared to change the settlement date. Can I still make an appeal to re open this matter?
     
  6. Tracy B

    Tracy B Well-Known Member

    Joined:
    24 December 2014
    Messages:
    435
    Likes Received:
    70
    Hi Junior,

    Did you attend the settlement? Was the settlement date court assigned or unilaterally set by the other side?
     
  7. Junior

    Junior Well-Known Member

    Joined:
    13 November 2014
    Messages:
    70
    Likes Received:
    6
    Thanks @ Tracy B,

    No @ Tracy B, I did not. I was told by the other party that they are only complying the 60 days court orders.
     
  8. Tracy B

    Tracy B Well-Known Member

    Joined:
    24 December 2014
    Messages:
    435
    Likes Received:
    70
    Hi Junior,

    If the order said to settle within 60 days, then so long as the 60 days is not up, you should be able to arrange another settlement date and place. Did the settlement, which you missed, reach any settlement? Did any part of the settlement agreement concern your rights and obligations?
     
  9. Junior

    Junior Well-Known Member

    Joined:
    13 November 2014
    Messages:
    70
    Likes Received:
    6
    Thanks @Tracy B,

    Even with out my present, the other party was able to pushed through with settlement. I received a notification email from the other party that they managed to settle set out by the 60 days court order.
     

Share This Page

Loading...