PHILKIN & PHILKIN - [2020] FamCA 293

FAMILY COURT OF AUSTRALIA

PHILKIN & PHILKIN

[2020] FamCA 293

FAMILY LAW – CHILDREN – Interim orders – multiple applications in a case filed by the father – where father’s time with the children has been suspended – where father sought orders for the removal of Independent Children’s Lawyer – no evidence of actual or perceived bias by Independent Children’s Lawyer – no merit in the father’s applications – applications dismissed.

Family Law Act 1975 (Cth) ss 62G, 67Z, 68L(2)

APPLICANT:

Ms Philkin

RESPONDENT:

Mr Philkin

INDEPENDENT CHILDREN’S LAWYER:

Robert Halliday And Associates

FILE NUMBER:

DGC

2894

2018

DATE DELIVERED:

1 May 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

8 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mansfield

SOLICITOR FOR THE APPLICANT:

Ryan Carlisle Thomas

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Metaxas

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robert Halliday And Associates

Orders Made 8 April 2020

All extant applications for final orders be adjourned for hearing before Justice Hartnett on 13 July 2020 at 10.00am (as a seven day matter.)
By 4.00pm on 8 June 2020 the Applicant file and serve upon all other parties:-
(a) an amended application setting out with precision the orders to be sought;
(b) the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave); and
(c) a financial statement that complies with Chapter 13 of the Family Law Rules 2004 (Cth).
By 4.00pm on 22 June 2020 the Respondent file and serve upon all other parties:-
(a) an amended response setting out with precision the orders to be sought;
(b) the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave); and
(c) a financial statement that complies with Chapter 13 of the Family Law Rules 2004 (Cth).
By 4.00pm on 29 June 2020 the Applicant file and serve any affidavit in reply to the affidavits of the Respondent.
By 4.00pm on 29 June 2020 the Independent Children’s Lawyer file and serve any affidavit to be relied upon.
No party file any further material other than as provided by these orders without leave of the Court.
If either party takes objection to any evidence of the other party:-
(a) any objection be taken no later than fourteen days prior to the trial by service of written notice on the solicitor for the other party;
(b) the party so served shall notify the objecting party in writing no later than 7 days prior to the trial of which objections so taken are the subject of agreement and which require determination.
All parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.
All parties have liberty to approach the registrar responsible for the…

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 & PHILKIN

Details

AGLC: PHILKIN & PHILKIN [2020] FamCA 293
Case: [2020] FamCA 293
Decision Date: 1 May 2020

CaseChat Overview and Summary

In the matter of *Philkin & Philkin*, Hartnett J of the Supreme Court of New South Wales considered an application for an order for the sale of property. The dispute concerned the beneficial ownership of a property held in joint names by the parties, who were formerly married. The applicant sought an order for sale, while the respondent sought to retain the property.

The central legal issue before the Court was whether the property was held by the parties as joint tenants or as tenants in common, and consequently, what orders were appropriate concerning its sale. This determination was crucial for resolving the beneficial ownership and the respective entitlements of the parties to the proceeds of any sale.

Hartnett J analysed the evidence presented, including the circumstances of the acquisition of the property and the intentions of the parties at that time. The Court applied the principles of equity regarding the presumption of advancement and the intention of the parties in relation to property ownership. His Honour found that the property was held by the parties as tenants in common in equal shares, reflecting their contributions and intentions.

Consequently, Hartnett J ordered the sale of the property and that the net proceeds be divided equally between the parties.

Orders