Family Court Appeals
If you are not happy with the family court’s decision may want to consider discussing with your lawyer the merits of appealing to the high court. Appeals must be appealing a question of law and not fact.
There are deadlines for filing a notice of appeal and also for filing an application for leave to appeal.
You have 20 working days from the date of the family court’s decision to appeal to the high court and 20 working days from the date after the family court’s decision was made to apply for leave (if required) of the high court.
There is generally a right to appeal conferred by virtue of section 72 of the District Courts Act to the High Court whether the decision or judgment was a final one or an interim one.
Also, there appears in each of the following family law Acts a standard appeal provision; section 341 Children, Young Persons & Their Families Act 1989 (CYPF), section 39 of the property (Relationships) Act 1976, section 174 of the Family Proceedings Act 1980 & section 15 of the Family Protection Act, and section 91 of the Domestic Violence Act. These provisions incorporated section 72 of the Districts Courts Act consequently appeals to the family court are by way of rehearing.
There are conflicting authorities whether leave is required of the high court or not for interlocutory decisions of the family court.
In respect of decisions pertaining to The Care of Children Act 2004 (COCA) leave of the High Court must be obtained for matters brought before the family court under section 44 & 46 of The Care of Children Act 2004.
Appealing to the Court of Appeal
The next highest court up from the high court is the court of appeal. Leave is required, and can be made in the first instance to the high court, and if the high court refuses leave, then you have a second chance to seek the court of appeals leave.
The Court of Appeal has set a limit of 30 pages for submissions and the test applied for granting the court of appeals leave are as follows:
a) Whether the appeal raises a question of law in respect of a public or private interest of sufficient importance to outweigh the cost and delay of further appeals.
b) The Court of Appeal is not to engage in general correction of its error but rather its primary function is to clarify the law and determine whether it has been properly construed and applied by the court below.
c) Not every error of law is of such importance to justify further litigation having been already considered twice.
TIME FOR FILING
Time for appealing from the high court is set when leave is granted or within 20 working days after the date of the high court’s decision.
In respect of the Family Proceedings Act, you have 28 days from the date of the high court’s decision to apply for leave, and in respect of matters under the Children, Young Persons & Their Families Act 1989 there are no time limits for applying for leave.
The law is constantly changing, consequently this article is not to be construed or relied upon as a substitute for professional legal advice from your lawyer.
Call me now on 021 029 64279 for further advice.