Wednesday, December 05, 2012

Family Lore Clinic: Can I appeal against a shared residence order?

You can appeal against a shared residence order, just as you can appeal against other types of order, provided you did not agree to it (in which case you could only challenge it in very limited circumstances, such as that the other party forced you to agree). However, you will first need the permission of the court to make the appeal - permission is essentially a filter, to stop people wasting the court's time with hopeless appeals.

There are limits to appeals. For an appeal to succeed, it must be shown that the decision of the lower court was either wrong or that it was unjust because of a serious procedural or other irregularity.

As to showing a decision was wrong, it is not enough that the appeal judge does not agree with the decision. Family judges are given a discretion as to what decision to make. This usually means that the judge has a range of reasonable decisions that he/she can make, in a given set of facts. For an appeal to succeed, you must show that the decision was so plainly wrong as to be outside that range - if it is not, then it will still stand, even if the appeal judge would have made a different decision.

Note also that the court hearing the appeal will not go over all of the evidence again - it will generally accept the lower court's findings of fact, unless they are obviously wrong. Accordingly, whatever findings the lower court made relevant to the 'welfare checklist' (see this post) are likely to be accepted by the appeal court.

Appealing against any order is a serious step to take. If you are considering it, then you should seek advice from an expert family lawyer.

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