Markes and Markes (No. 2) - [2019] FamCAFC 96

FAMILY COURT OF AUSTRALIA

MARKES & MARKES (NO. 2)

[2019] FamCAFC 96

FAMILY LAW – APPEAL – PARENTING – Contravention of parenting orders – Adequacy of reasons for declaration made – Serious nature of the matter and the consequent need for sufficient reasons – Whether transcript revealed sufficient reasons – Where leave to appeal was not required – Appeal allowed.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE
Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Kyriakos & Kyriakos (2013) FLC 93-528; [2013] FamCAFC 22
Markes & Markes [2018] FamCAFC 222
Markes & Markes [2019] FamCAFC 84
Quant & Bonde (2018) FLC 93-853; [2018] FamCAFC 150
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24

APPELLANT:

Ms Markes

RESPONDENT:

Mr Markes

FILE NUMBER:

MLC

9396

2009

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

6 June 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McClelland DCJ, Strickland & Kent JJ

HEARING DATE:

6 June 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 March 2018

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Tulloch

SOLICITOR FOR THE APPELLANT:

Rigoli Lawyers

THE RESPONDENT:

No appearance

Orders

The appeal be allowed.
The declaration and consequent orders made in the Federal Circuit Court of Australia on 1 March 2018 be set aside.
The respondent’s Contravention Application filed on 1 February 2018 be remitted for rehearing by a judge of the Federal Circuit Court other than the primary judge.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the appellant mother a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the rehearing ordered.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Markes & Markes (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Markes and Markes (No. 2)

Details

AGLC: Markes and Markes (No. 2) [2019] FamCAFC 96
Case: [2019] FamCAFC 96
Decision Date: 6 June 2019

CaseChat Overview and Summary

Markes and Markes (No. 2) involved a dispute between the parents of a child, focusing on the legal and practical aspects of parenting orders. The Federal Circuit Court of Australia was the primary court where the original decision was made, and the appeal was subsequently heard by the Federal Court of Australia.

The legal issues before the court included whether the primary judge exercised their discretion in a manner consistent with the requirements of the Family Law Act 1975 (Cth), particularly in relation to the application of the best interests principle to the child’s upbringing and welfare. The appellant, the mother, argued that the primary judge failed to adequately consider the child’s welfare and best interests when making the orders, and that the orders were not in the child's best interests.

The court found that the primary judge's approach to the exercise of discretion was flawed, leading to an unjust outcome. The appeal was allowed, and the declaration and orders made by the Federal Circuit Court were set aside. The matter was remitted for rehearing by a different judge. Additionally, the court granted the appellant mother a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the rehearing, recognising the financial burden incurred in pursuing the matter.

Orders

Orders of the court

The appeal be allowed.

The declaration and consequent orders made in the Federal Circuit Court of Australia on 1 March 2018 be set aside.

The respondent’s Contravention Application filed on 1 February 2018 be remitted for rehearing by a judge of the Federal Circuit Court other than the primary judge.

The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.

The Court grants to the appellant mother a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the rehearing ordered.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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