Can I appeal a shared custody order? Ex-Files with Jeremy Sutton

It can be tough deciding how to handle shared parenting after a the breakdown of a relationship.

OPINION

Q: My ex-husband and I have had proceedings in the Family Court for the last two years about care arrangements for our daughters. They are aged 4 and 7. Recently we had a five-day hearing in front of a judge. We were both cross-examined. A psychologist also gave evidence. Yesterday we were called back to the court and the judge delivered his judgement. The judge said we should share the care of our children on a week-about basis. He made final orders to this effect. Although my lawyer had warned me this was a possible outcome, I feel shocked. I do not believe the outcome is right. The new arrangements are meant to start next week. Can I appeal the decision? Alternatively, could I reapply to the Family Court to change the parenting order? In the meantime, should I still send the children to their dad’s house next week as the judge has ordered?

A: Can you appeal the Family Court decision?

In theory, yes, you could appeal the decision to the High Court. If you wish to do so, you have 20 working days from the date the decision was issued to file the appeal. If you appeal, the onus will be on you to convince the High Court the decision of the Family Court was plainly wrong. The High Court does not review the evidence. The High Court’s main concern will be to ensure the parenting orders made by the Family Court serve your children’s best interests.

Before filing an appeal, I suggest:

1. You have a frank discussion with your lawyer about what he or she considers your prospects of success in appealing to be.
2. You also seek a second opinion from another lawyer. It is helpful to have the views of someone who has not been involved in the case to date as they may be able to offer a different perspective.
3. You consider the likely cost of appealing. You will incur more legal fees in preparing for the appeal. If you are not successful on appeal, you also run the risk of a costs order being made against you. Costs are sometimes awarded in parenting cases at the Family Court level, but are almost always awarded in appeals to higher courts. So, if you lose the appeal, you may need to meet some of your ex-husband’s legal fees.

You have already spent a significant amount of time litigating the matter in the Family Court. The judge has made orders after detailed consideration of your case (you indicated the hearing was five days in length and a psychologist’s views were obtained). There is a good chance that although you are not happy with the orders made, they are best for the children. If this is the case, your money is better spent on any support (counselling for example) that will help you cope with the new arrangements rather than on funding more litigation.

Do you need to send the children to their dad’s house next week as the judge ordered?

The parenting order is an order of the court, and you need to comply with it. If you decided to proceed with an appeal, you could request that the High Court issue a “stay” of the Family Court judgement (i.e. put it on hold) until the appeal case has been heard by the Family Court. Your lawyer could request the High Court consider the request for a stay urgently.

Non-compliance

If you don’t comply with the court order, the court could enforce proceedings. A without-notice uplift of the children could occur.

Can you re-apply to the Family Court to change the parenting order?

No, you cannot apply to change a parenting order for two years after a final order has been made unless you are granted leave (permission) by the Family Court or there has been a “significant change in circumstances” since the order was made.