FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARKES & MARKES | [2018] FCCA 2663 |
| Catchwords: FAMILY LAW – Contravention application – parties agreed in parenting orders providing for children to spend time with father – orders provide for mother to deliver the children to the father’s place of residence – two earlier contravention applications – contraventions include not delivering children to father’s residence during school holidays, thwarting pre-paid holidays – further contravention application arising from non-delivery of children during 2017 Christmas holidays – respondent admits non-delivery of children but advances defence of reasonable excuse for not having done so – urgent s 11F child inclusive conference ordered – elder child unable to attend conference due to being away on school camp– reasonable excuse not established – orders made for delivery of submissions addressing the question of penalty – interim orders made for make-up time and for children to spend two consecutive weeks with applicant over Christmas holiday – respondent seeks to vacate orders for make-up time – order made to facilitate psychiatric assessment of respondent for the purposes of penalty hearing – respondent does not obtain psychiatric assessment – application in a case filed seeking stay of declaration of contravention pending application for extension of time in which to appeal making of declaration – applicable principles – potential for imposition of term of imprisonment to impact upon respondent’s employability even if sentence suspended – consequential effect on children – best interests of children a significant consideration – stay granted. |
| Legislation: Family Court Rules, rr.22.11 Family Law Act 1975 (Cth), ss.11F, 70NAA, 70NAC, 70NAE, 70NAF, 70NBA, 70NDA, 70NDB, 70NEA, 70NFA, 70NFB, 70NFG Federal Circuit Court Rules 2001 (Cth), rr.1.05, 25B.04 |
| Applicant: | MR MARKES |
| Respondent: | MS MARKES |
| File Number: | MLC 9396 of 2009 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 14 September 2018 |
| Date of Last Submission: | 14 September 2018 |
| Delivered at: | Melbourne |
| Orders pronounced: | 14 September 2018 |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Counsel… |
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- MARKES & MARKES [2018] FCCA 2663
- Case
- [2018] FCCA 2663
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the mother had a reasonable excuse for not delivering the children to the father's residence as required by the parenting orders. The court also had to consider the implications of a potential declaration of contravention, including the penalty that might be imposed and its consequential effect on the children, whose best interests were a significant consideration. The mother sought a stay of a declaration of contravention pending an application for an extension of time to appeal.
The court found that the mother had not established a reasonable excuse for the non-delivery of the children, noting that an elder child's inability to attend a child-inclusive conference due to a school camp did not constitute a reasonable excuse. The court considered the potential impact of a term of imprisonment, even if suspended, on the mother's employability and, consequently, on the children. Applying the principles relevant to granting a stay, particularly the best interests of the children, the court determined that a stay was warranted.
The court ordered that all times be abridged and the mother's application for a stay be heard. Pending the determination of her application for an extension of time to appeal and any subsequent appeal, the declaration of contravention made on 1 March 2018 was stayed. The further hearing of the contravention application was adjourned, and costs were reserved.
Orders
Orders of the court
UPON THE UNDERTAKING of the respondent, MS MARKES, by her counsel that she will prosecute with due expedition her application for an extension of time in which to appeal from the declaration made by paragraph 1 of the Order made on 1 March 2018, and any appeal arising thereon,
THE COURT ORDERS THAT:
1.
All times be abridged and the respondent’s application in a case filed on 11 September 2018 be listed for hearing this day.
2.
Pending the determination of the application in an appeal filed by the respondent on 11 September 2018 and any appeal, the declaration made by paragraph 1 of the Order made on 1 March 2018 be stayed.
3.
The further hearing and determination of the contravention application filed on 1 February 2018 is adjourned to a date to be fixed.
4.
The costs of and incidental to this day are reserved.
5.
Liberty to apply on reasonable notice.
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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