an appeal is initiated by filing a notice of appeal with the regional appeal registry within 28 days
An appeal is a timely legal remedy by the unsuccessful party in a court or administrative proceeding. In this article, the appeal procedures pertain to the decision of a federal magistrate or family court judge governed by Chapter 22 of the Family Rules 2004.
Before appealing, it is important that a person must first take stock of his case otherwise his time and that of the court will just be wasted. In order for an appeal to be successful, the higher court must be convinced that the lower court judge made an error in his/her decision.
- By applying a wrong principle of law;
- By gross exercise of discretion;
- By making a finding of fact which is not supported by evidence.
There are also appeal costs to be considered:
- Filing fee and transcript costs. Care must also be taken in filing an appeal because if unsuccessful the appellate court might order damages and costs to be paid to the other party.
An appeal is initiated by filing a Notice of Appeal with the regional appeal registry within 28 days from the time the assailed order is made. The orders appealed from must be attached, and the appellant must pay the filing fees or apply for an exemption thereof. The appellant will then arrange for the Notice of Appeal to be served on the respondent and all parties concerned within 14 days of filing the appeal.
The respondent or his party may also file a Notice of Appeal called cross-appeal within 14 days of being served by the appellant with his Notice of Appeal. In a cross-appeal filing fees must also be paid and the necessary documents attached.
Within 28 days of filing the appeal or 28 days from the time the order was made, the appellant will file a draft index to the appeal books in the regional appeal registry. The draft index must also be served to the respondent and all concerned parties.
The appeal will then be scheduled for a procedural hearing which may be conducted by the regional appeal registrar or the judge. In the procedural hearing, orders are made for the conduct of the appeal, but it is only the Chief Justice of the Family Court that decides whether the case will be heard by a single judge or a full court.
The hearing will not be a retrial wherein the appellate court will hear the same oral testimony and receive the same evidence. Rather, the appellate court will:
- Entertain newly discovered evidence;
- Appreciate all the documents filed in the original hearing and the transcripts;
- Hear the oral arguments of both parties;
- Consider the written summaries of arguments.
Sometimes a leave to appeal is the proper remedy instead of a notice of appeal. A leave to appeal is filed whenever:
- An interim or procedural order of the federal magistrate is being challenged which does not relate to a parenting order and is not final;
- an order made under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 is being challenged.
The leave to appeal is filed using the same document in filing a notice to appeal.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.