Philkin and Philkin (No 2)
[2020] FamCAFC 264
•2 November 2020
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 | of | 2018 |
| APPEAL NUMBER: | SOA | 70 | of | 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 done; any such facts should be deposed to in the affidavit in support of the application.
The father did file an affidavit in support on 24 August 2020, as well as the Notices of Appeal that he would want to proceed on if time to file was extended.
The application is opposed by Ms Philkin (“the mother”).
On 29 September 2020, the application was heard, and I made orders dismissing the same and reserving the question of costs. Because of time constraints, I was unable to deliver my reasons, and I indicated that I would provide them as soon as I was able to. These are those reasons.
Procedural background and the principles to be applied
For convenience I incorporate in these reasons the procedural background and the detail of the principles to be applied set out between [5] and [22] in my recently delivered reasons for judgment in Philkin & Philkin [2020] FamCAFC 263.
Thus, it will be necessary, and indeed appropriate, to read those reasons in conjunction with these reasons, given that in the application in that matter, the father was also seeking an extension of time to file Notices of Appeal against earlier orders made in the same proceedings.
The default and any subsequent delay
The explanation for his failure to file Notices of Appeal in time is deposed to by the father in paragraph 1 of his affidavit filed on 24 August 2020 as follows:
The facts address the delay in lodging the appeal. I have asked my Legal representatives to appeal the orders, however they have complained about a lack of funding rather than the merits of the appeal. This has caused me to be uncertain about my status as a self litigant and my representation and subsequently unsure as to who has the responsibility to file the appeals on time. The ICL has complained about receiving 250 emails from me and has informed me that they are irrelevant, yet he choose to appear at the last appeal before Honorable Justice Strickland.
(As per original)
Nothing deposed to in that paragraph satisfactorily explains the failure to file Notices of Appeal within time. As of when the orders were made, the father was plainly aware that he could appeal those orders, and he certainly knew how to go about that. At the very least, that is demonstrated by his filing on 15 April 2020, the Application in an Appeal dealt with in my previous decision, together with Draft Notices of Appeal.
I do not accept that the father was “uncertain” about his status as a “self litigant”, and who had the “responsibility to appeal on time”. There is of course no evidence to support these claims, and in particular that he told his “Legal representatives to appeal the orders”.
In oral submissions the father has suggested that other events and distractions meant that he was unable to file his Notices of Appeal in time, but again, there is no evidence produced to establish that, and without such evidence, I am not prepared to accept any assertion made by the father.
Finally, I note that the father presents the same “explanation” for his failure to file a Notice of Appeal against not only the orders of 1 May 2020, but also the orders of 13 July 2020. However, I find it impossible to accept that that could be the case, given the progression of the proceedings.
Then of course, there is no explanation whatsoever for the delay in filing his application insofar as it seeks an extension of time to file a Notice of Appeal against the orders of 1 May 2020.
Thus, I find that no satisfactory explanation has been provided by the father for his failure to file Notices of Appeal within time, and for his delay in filing the Application in an Appeal seeking an extension of time in relation to the orders made on 1 May 2020.
The merits of the appeals
The proposed appeal against the orders of 1 May 2020
First, I note that the father seeks leave to appeal, and he sets out the same facts that he has sought to rely on in each of the Draft Notices of Appeal that were the subject of my previous decision.
I laboriously repeat that leave to appeal is not required, but if it was, the facts relied on are completely inadequate, and do not demonstrate any basis for leave being granted.
Secondly, although the father proposes to appeal against all orders made on 1 May 2020, his one ground of appeal is as follows:
The Court should have had the hearing in person and have allocated sufficient time. The Court did not demonstrate to me that they sufficiently considered the affidavits that were filed in relation to the removal of the ICL.
However, there is no appealable error by her Honour asserted in this ground of appeal. The time that the hearing took was ample for her Honour to properly deal with all the applications that were before the court, and to allow the parties and the Independent Children’s Lawyer (“ICL”) to make their submissions.
The hearing was conducted by telephone, and there can be no error by her Honour in doing so. The hearing took place on 8 April 2020, namely at the height of the presence of COVID-19 in the Australian community.
Finally, it is not to the point whether her Honour had demonstrated to the father that she had “sufficiently considered the affidavits that were filed in relation to the removal of the ICL”. The father made an application to remove the ICL, and her Honour needed to deal with it, and she did. Her Honour quite properly dismissed that application, and amply provided her reasons for that at [39]-[55], [66]-[69].
Thus, there is no merit in the complaints of the father in this appeal.
The proposed appeal against the orders made on 13 July 2020
I note again that the father proposes to seek leave to appeal, and this time leave to appeal is required given the nature of the orders, namely an adjournment of the proceedings, and the making of interim property settlement orders.
However, the facts relied on in support of that proposed application are again completely inadequate, and do not provide a basis for leave to appeal to be granted.
That disposes of the matter, but I will still say something about the appeal, the orders sought to be appealed against, and the one ground of appeal.
The first point to make is that all of the orders made were made by consent, and although the father suggests that that was not so, he has nowhere demonstrated that the orders were not made by consent.
Secondly, although the father proposes to appeal against all of the orders made, his one ground of appeal is as follows:
In breach or [sic] orders to have hearing in person.
What that relates to is on 1 May 2020, when her Honour set the final hearing to commence on 13 July 2020, her Honour made the following notation to the orders:
A.This hearing will be required to be conducted with the litigants and lawyers in person, in the courtroom. The Respondent is a litigant in person and the matter is not one suitable to be conducted via Microsoft Teams.
Of course, this is a notation, not an order, and thus it cannot be the subject of an appeal. Further, the notation did not prevent her Honour changing her mind and conducting the hearing on 13 July 2020 by a different medium. And finally, that notation was made in the context of the hearing being listed for seven days, but as it turned out, the final hearing could not take place, and her Honour used the listing on 13 July 2020 to adjourn the matter, and make interim orders by consent.
Thus, there is no merit in this appeal.
Conclusion
In the circumstances, I do not need to go any further in determining this application.
Having found no satisfactory explanation for the failure to file the Notices of Appeal within time, and there being no merit in either of the proposed appeals, the application must be dismissed.
I also take the opportunity to record that the hearing of this application, and the hearing of the application the subject of my previous decision, have been monumental wastes of this Court’s time, as well as an unnecessary impost upon the staff of the court, and the court’s facilities and resources.
Costs
The mother seeks an order for costs consequent upon the dismissal of the application. She seeks a total amount of $2,033.62 comprising solicitor’s fees of $163.04 and counsel fees of $1,870.58.
The father opposes any order for costs and cites his financial circumstances, alleging he is receiving JobKeeper payments of $350 per week.
Plainly, given the lack of success of the application, there is a circumstance justifying an order for costs, and I propose to exercise my discretion in making the order sought by the mother.
I do not accept that the father’s financial circumstances are such that there should be no order for costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 2 November 2020.
Associate:
Date: 2 November 2020
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