8. Can an interim maintenance order be appealed?

8. Can an interim maintenance order be appealed? 

Yes.  If the Order is made by a master, either party can appeal to a judge.  If the order is made by a judge, then the appeal should be made to the Court of Appeal. 

Either party can appeal against an order made by master as of right by serving on every other party to the proceedings in which the order was given or made a notice of appeal within 14 days from the date of the order. 

To appeal an interim maintenance order made by a judge, the appellant must first apply for leave (permission) to appeal from the judge who made the order or, if refused, from the Court of Appeal. 

Under section 63A(2) of the District Court Ordinance (Cap. 336), the court must not grant leave to appeal unless it is satisfied that either: 

• the appeal has a reasonable prospect of success; or 
• there is some other reason in the interests of justice why the appeal should be heard. 

In other words, the party applying for leave to appeal must persuade the court that the appeal is not merely an expression of dissatisfaction with the outcome, but has a substantive and arguable legal or factual basis. 

A “reasonable prospect of success” does not require the applicant to prove that the appeal will definitely succeed. However, the applicant must show that the proposed grounds of appeal have a real, rather than fanciful, chance of success. For example: 

• the trial judge misunderstood or overlooked important evidence; 
• the judge applied the wrong legal principle; 
• the amount ordered clearly exceeds the payer’s financial ability; 
• the judge failed to give sufficient consideration to the reasonable needs of the children or one of the parties; 
• there was serious procedural unfairness; 
• the reasons for judgment were insufficient to support the order. 

Conversely, leave to appeal is usually difficult to obtain in the following circumstances: 

• the applicant merely repeats arguments already dealt with at first instance; 
• there is no new evidence or legal basis, and the applicant simply disagrees with the outcome; 
• serious allegations are made against the other party or their solicitor, but without supporting evidence; 
• the proposed appeal is based on emotional, aggressive, or irrelevant allegations; 
• the applicant fails to identify any specific error made by the trial judge. 

Even if leave is granted, the Court of Appeal will overturn the decision and exercise the discretion afresh only where the trial judge has made a plainly wrong decision, such as by making an error of principle, misunderstanding or failing to take into account relevant evidence or matters, taking into account irrelevant matters, or making a decision that falls outside the range of a reasonable exercise of discretion.