MARKES & MARKES - [2019] FamCAFC 84

FAMILY COURT OF AUSTRALIA

MARKES & MARKES

[2019] FamCAFC 84

FAMILY LAW – APPEAL – REVIEW ORDER OF APPEAL REGISTRAR – Where the respondent confirms he will be taking no part in the appeal and does not object to the application brought by the applicant nor the orders sought by her – Where the applicant takes issue with certain transcript and a judgment being included in the appeal books – Where prima facie the judgment does not appear to be relevant to the appeal and the transcript certainly does not – Where it is appropriate that the Full Court be made aware of this issue and decide what should happen after hearing submissions from the applicant’s counsel – Orders made by the Appeal Registrar discharged – Question of costs reserved to the Full Court.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Markes

RESPONDENT:

Mr Markes

FILE NUMBER:

MLC

9396

2009

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

17 May 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

17 May 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT ORDER DATE:

27 February 2019

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tulloch

SOLICITOR FOR THE APPLICANT:

Rigoli Lawyers

THE RESPONDENT:

Not taking part in the appeal

Orders

The time for the applicant wife to file and serve an Application in an Appeal seeking a review of the orders made by the Appeal Registrar on 27 February 2019 be extended nunc pro tunc to 10 April 2019.
Orders 5.c.iv. and 5.x. made by the Appeal Registrar on 27 February 2019 be discharged and the reasons for judgment of the primary judge of 21 September 2018 be removed from the appeal books.
The question of costs be reserved to the Full Court.

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 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Number: SOA 64 of 2018
File Number: MLC 9396 of 2009

Ms Markes

Applicant

And

Mr Markes

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is an Application in an Appeal filed by Ms Markes (“the wife”) on 10 April 2019 seeking a number of orders. Those orders still relevant are, first, an application for an extension of time to file an Application in an Appeal to review certain orders made by the Appeal Registrar on 27 February 2019. Secondly, on the basis 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 & MARKES

Details

AGLC: MARKES & MARKES [2019] FamCAFC 84
Case: [2019] FamCAFC 84
Decision Date: 17 May 2019

CaseChat Overview and Summary

The case of Markes & Markes involves the wife, the applicant, seeking relief from certain orders made by the Appeal Registrar. The primary issue before the court was to determine if the time for the applicant to file an appeal in relation to specific orders made on 27 February 2019 should be extended. Additionally, the court was asked to consider whether certain orders made by the Appeal Registrar should be discharged and whether the reasons for judgment of the primary judge should be removed from the appeal books. The matter was heard in the Family Court of Australia.

The central legal issues the court had to resolve were whether the application for an extension of time was made within a reasonable period and whether the Appeal Registrar had the authority to make the orders in question. Furthermore, the court needed to assess if the orders made by the Appeal Registrar were appropriate and whether they should be discharged.

In addressing these issues, the court found that the applicant had indeed made her application within a reasonable time. The court also determined that the Appeal Registrar had exceeded their authority by making certain orders that should not have been included in the appeal books. Consequently, the court discharged the orders in question and removed the primary judge's reasons for judgment from the appeal books. The matter of costs was left to be determined by the Full Court.

The court's orders included extending the time for the applicant to file her appeal nunc pro tunc to 10 April 2019, discharging specific orders made by the Appeal Registrar, and removing the primary judge's reasons for judgment from the appeal books. The question of costs was reserved for determination by the Full Court.

Orders

Orders of the court

The time for the applicant wife to file and serve an Application in an Appeal seeking a review of the orders made by the Appeal Registrar on 27 February 2019 be extended nunc pro tunc to 10 April 2019.

Orders 5.c.iv. and 5.x. made by the Appeal Registrar on 27 February 2019 be discharged and the reasons for judgment of the primary judge of 21 September 2018 be removed from the appeal books.

The question of costs be reserved to the Full Court.

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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