Family law

Permission to appeal out of time

Kean v Kean [2002] 2 FLR 28, Mr Justice Charles

In Kean v Kean, Mr Justice Charles considered a wife's (W) application for permission to appeal out of time in circumstances where she had accepted a lump sum on divorce.

This was recorded in a consent order.

Subsequently, the value of a flat occupied by the husband at the time of the divorce increased substantially in value.

The wife said she should have permission to appeal out of time because a fundamental assumption on which the order was based had changed and she was likely to succeed on her appeal (Barder v Barder [1988] AC 20, HL).

Mr Justice Charles refused permission.

On the facts, the valuation of the property at the time of the consent order was not a fundamental assumption on which the order was based and he was not optimistic as to the success of the wife's appeal.

Barder applications for permission to appeal out of time are by no means easy of success - especially where changes in valuation are concerned (see Cornick v Cornick [1995] 2 FLR 490).

Permission to appeal to the Court of Appeal

Re T (a Child) (Contact: Permission to Appeal) (2002) The Times, 30 October, CA

Lord Justice Thorpe chose a children case Re T (a Child) (Contact: Permission to Appeal), to remind practitioners of the procedure for seeking permission to appeal to the Court of Appeal (Civil Procedure Rules 1998 (CPR), rule 52.3).

Normally, permission should be requested, in the first instance, from the judge (rule 52.3(2)(a)), then to the Court of Appeal (rule 52.3(3)).

However, following a written judgment or where a client decides after the hearing that he or she wishes to appeal, application for permission can be made direct to the Court of Appeal (rule 52.3(2)(b)).

In family proceedings, permission is not needed for an appeal from district judge to judge (rules 4.22(2) and 8.1(2) of the Family Proceedings Rules 1991 - two barristers appearing against me recently have requested permission where none was needed); or from family proceedings court to High Court judge (rule 4.22).

An appeal does not operate as a stay of the order appealed against (confirmed, for example, by CPR, rule 52.7).

A stay should be applied for when permission is requested.

An approach to pension-sharing

We are still very short of help from reported decisions as to how to approach pension-sharing.

With some diffidence I mention the recent approach of a district judge.

A husband and wife were aged around 52.

He had taken early retirement from a bank, though he had another job.

She had part-time work.

She wanted pension-sharing of what remained of his fund.

He wanted to pay periodical payments.

For the sake of certainty, to avoid successive applications for variations of periodical payments and to achieve a clean break, the judge held that she should have her order.

Most of all, though, said the district judge, why should she have something she did not want when, at minimal income loss to the husband, she could have what she did want?

It seems also that he had not appreciated that if an order for periodical payments were made, he could still face a pension-sharing order on a later variation application under section 31(7B)(ba) of the Matrimonial Causes Act 1973.

Child support - commencement date for the 2002 scheme?

On child support, news of the introduction of the new scheme is no better.

This year seems impossible, next year, by no means certain.

The rumour is that trying to link up the Child Support Agency computer to Interpol, the FBI and NASA is proving more difficult than expected.

It seems that sums which can be done by the averagely numerate solicitor on the back of a fag packet present a challenge to the computer.

Watch this space for further news.

By David Burrows, David Burrows, Bristol