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 that extension of time being granted, an order is sought to discharge two of the orders made by the Appeal Registrar as to what was required to be included in the appeal books for the purposes of this appeal. Thirdly, an order for costs.
There has been no appearance by or on behalf of Mr Markes (“the husband”), however, on 16 May 2019 his solicitor sent an email to the Appeal Registrar indicating that he did not intend to participate in the appeal, did not object to the application that the wife be given leave to appeal, did not object to the wife being given an extension of time to file the Application in an Appeal for a review of the orders made by the Appeal Registrar, and did not object to the Appeal Registrar’s decision being reviewed. On that basis, I will be making an order extending the time.
In terms of the review of the relevant orders made by the Appeal Registrar, unfortunately the email from the husband’s solicitor is a little ambiguous as to whether that review is consented to, but, in any event, in my view, the orders challenged should be discharged. They are orders 5.c.iv. and 5.x. made by the Appeal Registrar on 27 February 2019.
What the Appeal Registrar was doing on that day was making the usual orders for the preparation of the appeal for hearing and, specifically, making orders as to what should be included in the appeal books. Order 5.c.iv. provided for the reasons for judgment of the primary judge delivered on 21 September 2018 to be included in the appeal books, and Order 5.x. provided for the transcript of proceedings before the primary judge on 14 September 2018 to also be included in the appeal books.
The basis of the application in relation to those two orders is that those documents have arisen subsequent to the declaration and the order under appeal; the declaration and the order having been made on 1 March 2018.
Although there are no reasons for the decision by the Appeal Registrar to require those documents to be included in the appeal books, it is apparent that an argument could possibly be raised that at least the reasons for judgment of 21 September 2018 has some relevance to the appeal against the declaration and the order made on 1 March 2018, and that argument could arise in the following way.
The declaration made on 1 March 2018 was that the wife had contravened orders made by Judge Hughes on 30 September 2013, and the order the subject of the appeal and made on that day, was that the husband’s costs of and incidental to the contravention application be reserved.
Subsequent to the hearing on 1 March 2018 and those orders, there were hearings before the primary judge, because what the primary judge also did on 1 March 2018, was to adjourn determination and penalty to 2 May 2018. However, as I understand it that did not occur and, indeed, penalty has still not been determined.
What then happened is that on 11 September 2018 the wife filed an Application in an Appeal seeking an extension of time to appeal the primary judge’s declaration and order made on 1 March 2018. At the same time, namely 11 September 2018, the wife filed an Application in a Case seeking a stay of the proceedings, and that application came before the primary judge on 14 September 2018, and his Honour delivered his reasons for judgment in relation to that application on 21 September 2018.
His Honour stayed the declaration and adjourned the further hearing and determination of the contravention application to a date to be fixed, and delivered extensive reasons for judgment. As can be seen, they are the reasons for judgment which the Appeal Registrar required to be included in the appeal books, and the other document, being the transcript of 14 September 2018 was, indeed, the transcript of that hearing I have just referred to.
What seems to be the case is that in those reasons for judgment of 21 September 2018, the primary judge has sought to, for want of a better description, explain or provide reasons for the declaration and the order made on 1 March 2018. Thus, as I say, prima facie, there is an argument which could be mounted that at least those reasons for judgment may have some relevance to the appeal.
The position today is that the appeal books have, in fact, been filed and served. The appeal books contain the reasons for judgment delivered on 21 September 2018, but they do not include the transcript, primarily because of the cost involved, but equally because the position taken by the wife is that that transcript should not be before the Full Court, it arising subsequent to 1 March 2018, and it having no relevance to the appeal.
For my part, the two documents the subject of this application should not be included in the appeal books, principally because they arose subsequent to the declaration and the order made on 1 March 2018, and without making any final determination in this regard, it seems to me that the reasons for judgment of 21 September 2018 would not be relevant to the appeal.
The usual way that documents such as these are sought to be put before the Full Court is by way of an application to lead further evidence. Of course, as I have indicated, the husband has said that he does not intend to participate in the appeal and, indeed, he has not filed any documents in relation to the appeal, and if anyone was to make such an application to lead further evidence it would be the husband as the respondent.
However, that said, it seems to me that it would be appropriate for the Full Court when hearing this appeal to be made aware of this issue, and I propose to request that the Appeal Registrar provide a memo to the Full Court providing detail of, for example, the Appeal Registrar’s initial order, the application that is before the court today, and the result of that application. What the Full Court does with that will be entirely up to the Full Court and, of course, the wife’s counsel will be able to make any submission in relation to it at that time.
However, my remarks only relate to the reasons for judgment of 21 September 2018, and not to the transcript of 14 September 2018. I say that because a primary issue in this case is a complaint of a lack of adequate reasons. Of course though, if the reasons of 21 September 2018 have any relevance to the appeal, that would not extend to the transcript of the hearing which led to those reasons. Where there are reasons one does not go to the transcript of the hearing to either look for further reasons, or look for explanations as to why the reasons are as they are. Thus, I cannot see any relevance for the transcript to be before the Full Court.

I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 17 May 2019.

Associate:

Date: 22 May 2019