Appealing a Family Court Decision

An appeal may be filed to challenge a lower court’s decision. The appellate court may issue another order if it finds that the lower court committed errors.

All court cases must come to an end. The court will endeavour to make an order that is based on the facts and the laws applicable to the case. Despite this, there is a possibility that litigants will not be satisfied with the court’s decision. While many parties will just accept their lot and comply with the court’s order, others choose to go through the appeal process.

Appeal

An appeal is the process by which a person who is dissatisfied with a court’s decision challenges it by asking for a higher court to review the decision.  This is the proper procedure of questioning a court’s decision.

An appeal does not hear the case all over again. Rather, the court will review the decision to see if the lower court made any errors. The appellant (person making the appeal) must therefore convince the higher court that the judicial officer made an error. 

The appellant should not expect that:

  • The appeal court will call witnesses to testify;
  • The appeal court will consider new evidence or information that was not presented before the lower court unless there are special circumstances that exist for the higher court to make an exception.

The appellate court will:

  • Read and study the relevant documents presented before the lower court;
  • Go over the transcript of the hearing that took place before the lower court;
  • Consider the oral and written legal arguments of parties from both sides.

Grounds for appeal

The appellant must prove to the higher court that the lower court made an error in:

  • The application of a principle of law or case law;
  • The finding of facts such as that:
  • A certain event did or did not occur;
  • The valuation of assets in a property settlement case;
  • Something was said or not said.

The exercise of judicial discretion. Family law cases sometimes leave it to the judicial officer to exercise his discretion in the absence of strict rules in deciding a case. For instance, in a parenting case the ultimate consideration is the best interest of a child which is largely left to the judicial officer’s discretion to determine after considering the parties’ circumstances, evidence and expert reports.

The same with a property settlement case which must be resolved with an order that is just and equitable for all parties. The court is required to follow a four step process in every property settlement case but the primary consideration for the judicial officer is that the settlement must be just and equitable. Thus, in deciding the division of properties for the litigants much is left to judicial discretion.

Results of an appeal

  • The appellate court may:
  • Dismiss the appeal;
  • Grant the appeal and issue another different from the order that was reviewed
  • Order a retrial to be conducted by the lower court.

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