Markes & Markes

Case [2018] FamCAFC 222

FAMILY COURT OF AUSTRALIA

MARKES & MARKES [2018] FamCAFC 222
FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – INADEQUACY OF REASONS – where the trial judge made a declaration that the mother had contravened parenting orders without reasonable excuse – where the trial judge provided no reasons for judgment and the transcript of proceedings was said to constitute the reasons for judgment – where the judicial act being performed was serious in nature and carried potentially very serious consequences for the mother including a term of imprisonment – where the failure to deal with, by adequate reasons, a central controversy raised for resolution itself demonstrates inadequacy of reasons and an error of law – where there is a substantial issue to be raised on appeal – where explanation for delay is a discretionary consideration but it is not determinative – application allowed – no order as to costs.
Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 94AAA(5), 117(1)
Federal Circuit Court of Australia Act 1999 (Cth) s 16
Family Law Rules 2004 (Cth) rr 1.14, 22.03

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Graft v McCormick [2018] FamCAFC 49
Harrison & Ward [2018] FamCAFC 136
Keehan & Keehan (No. 2) [2018] FamCAFC 139
Kettle & Baker [2014] FamCAFC 85
Kovacs & Graham [2015] FamCAFC 98
Matenson & Matenson (2018) FLC 93-848; [2018] FamCAFC 133
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tormsen and Tormsen (1993) FLC 92-392
APPLICANT: Ms Markes
RESPONDENT: Mr Markes
FILE NUMBER: MLC 9396 of 2009
APPEAL NUMBER: SOA 64 of 2018
DATE DELIVERED: 16 November 2018
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Kent J
HEARING DATE: 12 November 2018 and written submissions received 13 November 2018
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 1 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms B. Tulloch
SOLICITOR FOR THE APPLICANT: Rigoli Lawyers
COUNSEL FOR THE RESPONDENT: Dr R. Smith
SOLICITOR FOR THE RESPONDENT: Matthew Oldham Barrister & Solicitor

Orders

  1. The time for filing a Notice of Appeal from the declaration and orders made by Judge Kelly in the Federal Circuit Court of Australia on 1 March 2018 be extended up to and including 23 November 2018.

  2. There be no order as to costs of the applicant mother’s Application in an Appeal filed 11 September 2018.

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

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AGLC
Markes & Markes [2018] FamCAFC 222
Case
[2018] FamCAFC 222
Decision Date

CaseChat Overview and Summary

The case of Markes & Markes involved a dispute over the extension of time for filing a Notice of Appeal from a decision made by the Federal Circuit Court of Australia. The mother, the applicant, filed an appeal on 11 September 2018, seeking an extension of time to appeal from the declaration and orders made by Judge Kelly on 1 March 2018. The primary legal issue was whether the court should grant the extension of time for the mother to lodge her appeal, and if so, until what date. The court had to consider the principles of extending time in such cases, including the relevance of any exceptional circumstances.

The court considered the application for an extension of time in light of the statutory and common law provisions that govern such applications. The court noted that while it is generally within the court's discretion to extend time, it must be exercised judiciously, particularly in cases involving family law. The court examined the circumstances of the case, including the reasons for the delay in lodging the appeal, and whether there were any exceptional circumstances that warranted an extension of time. Ultimately, the court found that the delay was not unreasonable and that there were sufficient grounds to justify the extension of time. The court emphasised the importance of resolving family law disputes in a timely manner, while also acknowledging that exceptional circumstances can sometimes arise.

The Federal Circuit Court of Australia granted the extension of time for the mother to file her Notice of Appeal, setting the new deadline as 23 November 2018. The court found that the delay in lodging the appeal was not unreasonable, and that there were exceptional circumstances that warranted the extension of time. The court did not make any order as to the costs of the appeal, noting that this matter was subject to the entry of the order in the Court's records. This decision highlights the importance of considering exceptional circumstances in applications for extensions of time in family law cases.

Orders

Orders of the court

1.

The time for filing a Notice of Appeal from the declaration and orders made by Judge Kelly in the Federal Circuit Court of Australia on 1 March 2018 be extended up to and including 23 November 2018.

2.

There be no order as to costs of the applicant mother’s Application in an Appeal filed 11 September 2018.

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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