Philkin and Philkin (No 2) - [2020] FamCAFC 264

FAMILY COURT OF AUSTRALIA

PHILKIN & PHILKIN (NO. 2)

[2020] FamCAFC 264

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the applicant seeks orders extending the time to file Notices of Appeal – Where no satisfactory explanation is provided for the failure to file Notices of Appeal within time – Where leave is not required but if it were the facts relied on are completely inadequate and do not demonstrate any basis for leave to be granted – Where there is no merit in either of the proposed appeals – Application dismissed.

FAMILY LAW – COSTS – Where the respondent seeks an order for costs – Where the applicant opposes any order for costs being made and cites his financial circumstances – Where the application has been unsuccessful and thus there is a circumstance justifying an order for costs – Costs ordered as sought by the respondent.

Family Law Act 1975 (Cth)

Philkin & Philkin [2020] FamCAFC 263

APPLICANT:

Mr Philkin

RESPONDENT:

Ms Philkin

FILE NUMBER:

DGC

2894

2018

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

2 November 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide via telephone-link

JUDGMENT OF:

Strickland J

HEARING DATE:

29 September 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

1 May 2020

LOWER COURT MNC:

[2020] FamCA 293

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Mansfield

SOLICITOR FOR THE RESPONDENT:

Ryan Carlisle Thomas Lawyers

Orders made 29 September 2020

The Application in an Appeal filed on 24 August 2020 be dismissed.
The question of costs be reserved.

Order made 2 November 2020

The applicant father pay the costs of the respondent mother fixed in the sum of $2,033.62.

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 Philkin & Philkin (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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Number: SOA 70 of 2020
File Number: DGC 2894 of 2018

Mr Philkin

Applicant

And

Ms Philkin

Respondent

REASONS FOR JUDGMENT

Introduction

By Application in an Appeal filed on 24 August 2020, Mr Philkin (“the father”) seeks orders extending the time to file Notices of Appeal against the orders made on 1 May 2020 and 13 July 2020, by a Judge of the Family Court of Australia.
I note that in the application the father has included alleged facts, which it seems he seeks be taken into account in support of his application. However, it is not appropriate for that to be…

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 Philkin and Philkin (No 2)

Details

AGLC: Philkin and Philkin (No 2) [2020] FamCAFC 264
Case: [2020] FamCAFC 264
Decision Date: 2 November 2020

CaseChat Overview and Summary

Philkin and Philkin (No 2) involved an appeal against an order that denied the applicant’s application to extend the time to file Notices of Appeal. The application was made under the Family Law Act 1975, and the dispute arose from the initial failure to file the Notices of Appeal within the specified time frame. The court was tasked with determining whether the applicant could be granted an extension of time to file the Notices of Appeal and, if so, whether the respondent should bear the costs of the application.

The legal issues before the court were whether the applicant could provide a satisfactory explanation for the delay in filing the Notices of Appeal and, if not, whether the applicant had demonstrated any basis for granting leave to appeal out of time. Additionally, the court had to consider whether there was any merit in the proposed appeals and whether the respondent should be awarded costs given the unsuccessful nature of the application.

The court found that the applicant had not provided any satisfactory explanation for the delay in filing the Notices of Appeal. Furthermore, the court determined that if leave were required, the facts relied upon were completely inadequate and did not demonstrate any basis for granting leave. The court also found that there was no merit in either of the proposed appeals. Consequently, the application for an extension of time was dismissed. Given the unsuccessful nature of the application, the court ordered the applicant to pay the respondent’s costs as sought.

The final orders of the court were that the application for an extension of time to file the Notices of Appeal was dismissed and that the applicant was ordered to pay the respondent’s costs of the application.

Orders