Appeals and enforcement

Part 1: Appeals

When can you appeal?

You can appeal a court decision if you believe the judge:

• Made an error of law (got the law wrong)
• Made an error of fact (got important facts wrong)
• Exercised their discretion improperly
• Conducted the hearing unfairly

You cannot appeal simply because you don’t like the outcome. “I disagree with the judge” isn’t enough – you need to show something went wrong.

Time limits

You usually have 21 days from the date of the order to file an appeal notice. This deadline is strict. Missing it usually means losing the right to appeal (though extensions can sometimes be granted for good reasons).

Permission to appeal

For most family court decisions, you need permission to appeal before your appeal can proceed. This means convincing a judge that your appeal has a realistic prospect of success.

You can ask for permission:

• From the judge who made the original decision (at the hearing or shortly after)
• From the appeal court if the original judge refuses

Without permission, your appeal won’t be heard.

The appeal process

1. File an appeal notice – Form N161, within 21 days
2. Include grounds of appeal – explaining what went wrong
3. Seek permission – either from original judge or appeal court
4. If permission granted – the appeal is listed for hearing
5. Appeal hearing – the appeal court reviews the decision

What appeals courts can do

If your appeal succeeds, the appeal court can:

• Overturn the original decision
• Vary (change) the original decision
• Order a new hearing before a different judge
• Uphold the original decision but for different reasons

Costs and risks

Appeals are expensive. If you lose, you may have to pay the other party’s costs as well as your own. Consider carefully whether an appeal is worthwhile.

Appealing consent orders

It’s very difficult to appeal a consent order (one you agreed to). You agreed to the terms, so you can’t easily claim the judge got it wrong. Consent orders can only be set aside in limited circumstances:

• Fraud or material non-disclosure
• Mistake
• Undue influence or duress
• Circumstances have radically changed since the order

Part 2: Enforcement

When enforcement is needed

Court orders are meant to be obeyed. But sometimes people don’t comply:

• They don’t pay what they were ordered to pay
• They don’t transfer property as ordered
• They don’t follow child arrangements
• They don’t provide required information

When this happens, you can ask the court to enforce the order.

Enforcement of financial orders

If your ex-partner isn’t paying what they owe (maintenance, lump sum, etc.), options include:

Attachment of earnings order The court orders their employer to deduct money from wages and pay it to you. Effective if they have regular employment.

Third party debt order The court orders money to be paid directly from their bank account. You need to know where they bank.

Charging order A charge is placed on their property (like a mortgage). You don’t get money immediately, but you’re secured against the property.

Order for sale If there’s a charging order, you can apply to force the sale of the property. Courts are reluctant unless the debt is substantial.

Warrant of control Bailiffs can seize and sell goods to pay the debt. Of limited use if they don’t have valuable possessions.

Judgment summons Your ex-partner is summoned to court to explain why they haven’t paid. Can lead to committal (see below) for deliberate non-payment.

Enforcement of property orders

If your ex-partner won’t transfer property as ordered:

• You can apply for the court to execute the transfer on their behalf
• The order takes effect as if they had signed the documents

Enforcement of child arrangements orders

If your ex-partner isn’t following a Child Arrangements Order:

Warning notice (C79) The court attaches a warning notice explaining the consequences of breaching the order.

Enforcement order The court can order unpaid work (community service) for breaches.

Compensation for financial loss If the breach caused you financial loss (lost work, holiday costs), you can seek compensation.

Fine For persistent breaches.

Committal to prison The ultimate sanction for serious, deliberate breaches. Used rarely and as a last resort.

Variation of the order The court might change the order if it’s clearly not working.

Contempt of court

Deliberately disobeying a court order is “contempt of court.” Consequences can include:

• Fines
• Seizure of assets
• Imprisonment (up to 2 years for serious contempt)

Courts take this seriously but use the strongest sanctions sparingly.

The enforcement process

1. Document the breach – keep records of what happened
2. Apply to court – use the appropriate application form
3. Court hearing – both parties explain their position
4. Judge decides – whether to enforce and how

Costs of enforcement

Enforcement applications involve court fees and potentially legal costs. Weigh the cost of enforcement against what you’re trying to recover.

Practical tips

Before seeking enforcement:

• Make sure the order is clear about what was required
• Check whether there’s a legitimate reason for non-compliance
• Consider whether negotiation might resolve it
• Get legal advice on the best enforcement method

If you’re struggling to comply:

• Don’t just ignore the order
• Apply to vary the order if circumstances have changed
• Communicate with the other party about difficulties
• Seek legal advice about your options

Setting aside orders

In very limited circumstances, you can ask the court to set aside (cancel) an order:

Procedural irregularity – something went wrong with the court process

Material non-disclosure – the other party hid important information

Fraud – the order was obtained by dishonesty

Supervening event – something fundamental has changed (rare)

Setting aside is difficult and not the same as appealing. Get legal advice if you think it applies.