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 | of | 2009 |
| APPEAL NUMBER: | SOA | 64 | of | 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).
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- AGLC
- Markes and Markes (No. 2) [2019] FamCAFC 96
- Case
- [2019] FamCAFC 96
- Decision Date
CaseChat Overview and Summary
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
1.
The appeal be allowed.
2.
The declaration and consequent orders made in the Federal Circuit Court of Australia on 1 March 2018 be set aside.
3.
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.
4.
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.
5.
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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