PHILKIN & PHILKIN
[2020] FamCAFC 263
•2 November 2020
FAMILY COURT OF AUSTRALIA
| PHILKIN & PHILKIN | [2020] FamCAFC 263 |
| FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is no adequate explanation for the failure to file Notices of Appeal within time or for the delay in filing the Application in an Appeal seeking extensions of time – Where leave to appeal is not required but if it were the facts relied on by the applicant do not justify leave being granted and do not address the requirements for that to be achieved – Where the appeals have no merit – Where the prejudice to the respondent looms large if the application succeeds – Where the strict application of the Rules does not work an injustice – Application dismissed. FAMILY LAW – COSTS – Where the respondent and the Independent Children’s Lawyer seek orders for costs – Where the application was wholly unsuccessful and thus there is a circumstance which justifies orders for costs – Where the applicant’s financial circumstances should not prevent orders for costs being made – Where no hardship to the applicant is established – Costs ordered as sought by the respondent and the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) ss 4(1), 67Z(2), 69ZW, 94AAA(1), 117(2A)(e), 117(4) |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 |
| APPLICANT: | Mr Philkin |
| RESPONDENT: | Ms Philkin |
| INDEPENDENT CHILDREN’S LAWYER: | Robert Halliday & Associates |
| FILE NUMBER: | DGC | 2894 | of | 2018 |
| APPEAL NUMBER: | SOA | 31 | of | 2020 |
| DATE DELIVERED: | 2 November 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide via video-link |
| JUDGMENT OF: | Strickland J |
| HEARING DATES: | 5 August 2020 & 2 September 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 & 26 November 2019 7 February 2020 |
| LOWER COURT MNC: | [2019] FCCA 3515 [2020] FCCA 534 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Mansfield |
| SOLICITOR FOR THE RESPONDENT: | Ryan Carlisle Thomas Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Metaxas |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robert Halliday & Associates |
Orders
The Application in an Appeal filed on 15 April 2020 be dismissed.
The applicant father pay the costs of the respondent mother fixed in the sum of $5,000.
The applicant father pay the costs of the Independent Children’s Lawyer fixed in the sum of $5,128.
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 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 31 of 2020
File Number: DGC 2894 of 2018
| Mr Philkin |
Applicant
And
| Ms Philkin |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
On 15 April 2020, Mr Philkin (“the father”) filed an Application in an Appeal seeking extensions of time to file Notices of Appeal against orders made by two judges of the Federal Circuit Court of Australia, namely Judge O’Sullivan on 25 and 26 November 2019, and Judge Stewart on 7 February 2020.
The application was supported by an affidavit also filed on 15 April 2020, and Draft Notices of Appeal against each of the three sets of orders.
The hearing of the application took place initially on 5 August 2020, but for reasons which I will explain shortly, the hearing was not able to be completed on that day, and it was adjourned to 2 September 2020 when it was completed, and judgment was reserved.
The application is opposed by Ms Philkin (“the mother”), and by the Independent Children’s Lawyer (“ICL”).
Procedural background
On 22 August 2018, the mother filed an Initiating Application in the Federal Circuit Court of Australia, seeking both interim and final parenting and property settlement orders. The parenting orders were sought in relation to the three children of the relationship respectively born in 2007, 2009 and 2012.
The mother also filed on 22 August 2018, a Notice of Risk pursuant to s 67Z(2) of the Family Law Act 1975 (Cth) (“the Act”).
On 21 June 2019, the father filed a Response seeking both interim and final parenting and property settlement orders, together with a Notice of Risk.
On 18 July 2019, interim orders were made that the children live with the mother and spend time with the father each alternate weekend.
Prior to this the family had come to the attention of the Department of Health and Human Services (“the Department”), initially upon notification made by the father. In addition, as from 1 June 2018, the parties were involved in proceedings in the Victorian State Courts in relation to competing intervention order applications.
On 11 September 2019, the mother filed an Application in a Case, and the father did the same on 1 October 2019. Those applications came before the court on 10 October 2019, and apart from an order being made for the children and the parties to attend a child inclusive conference on 2 December 2019, the Department was requested to provide a report pursuant to s 69ZW of the Act, and the competing interim applications were relisted to 25 November 2019.
The father’s application primarily sought an order that the children live with him and spend supervised time with the mother, and the mother’s application sought that the spend time orders made in favour of the father on 18 July 2019, be suspended.
On 23 October 2019, the ICL filed an Application in a Case, and the mother filed another Application in a Case. The ICL sought orders that the previous orders providing for the children to spend time with the father be suspended, that application be made to a Children’s Contact Service to supervise any time the children spent with the father, and that the father be psychiatrically assessed.
The mother sought the same orders in her application.
On or about 13 November 2019, the report from the Department was received by the court.
On 25 November 2019, the matter came before Judge O’Sullivan. His Honour refused to give leave to the father to rely on an affidavit that he had filed the day before, but he had not yet provided to the other parties. His Honour also read out the report received from the Department, and then adjourned the matter to the next day for the father to tell him why orders should not be made as sought by the mother and the ICL. His Honour also gave the parties liberty to inspect, and the legal representatives and the ICL liberty to inspect and photocopy the Department’s report, while restraining the legal representatives from providing a copy of that report to any other person, other than for the purposes of the proceedings.
On 26 November 2019, the hearing resumed, and after hearing submissions, his Honour made orders, inter alia:
a)that the parties and the children attend a child inclusive conference with a family consultant on 15 January 2020 and the conference listed for 2 December 2019 be vacated;
b)that the parties obtain psychiatric reports assessing their respective psychiatric states;
c)that the spend time with order made in favour of the father on 18 July 2019 be suspended;
d)that the parties make application to a Children’s Contact Service to supervise any time to be spent between the children and the father; and
e)the proceedings be adjourned to 7 February 2020 for mention.
On 7 February 2020, before Judge Stewart, the proceedings were transferred to the Family Court of Australia, and orders were made providing for the father to send gifts and cards for the children’s birthdays in February via the ICL, and for the parties to engage one of two named psychiatrists to provide the required assessment and reports.
Subsequently, the father filed Applications in a Case on 19 February 2020, 26 February 2020, and 6 April 2020, and the matter came before Hartnett J on 8 April 2020. On 1 May 2020 her Honour dismissed the father’s applications and listed the matter for final hearing on 13 July 2020.
On 13 July 2020, the final hearing was unable to proceed, and by consent her Honour adjourned the matter to 6 October 2020, and made a number of interim property settlement orders.
The principles to be applied
Rule 1.14 of the Family Law Rules 2004 (Cth) (“the Rules”) provides a discretionary power to extend time for the filing of a Notice of Appeal, and the exercise of that power has been typically referenced to the well-known statement by McHugh J in Gallo v Dawson (1990) 93 ALR 479, wherein his Honour said this at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott [1986] 12 FCR 187, at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v. Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
Thus, the fundamental issue is whether an extension of time is necessary to ensure that the fixing of the time to file a Notice of Appeal does not become an “instrument of injustice”.
Whilst the discretion is at large, whether the default and any subsequent delay has been satisfactorily explained, whether there is a substantial issue to be raised on appeal, and the prejudice to the parties depending on the result, have typically been emphasised as central to the exercise of the discretion.
The default and any subsequent delay
The explanation for his failure to file Notices of Appeal within time is deposed to by the father in paragraph 1 of his affidavit of 15 April 2020, as follows:
I have been made aware of rule 22.03 today by email, by [the] Appeals Registrar by email, as I am currently a self litigant. I am appealing the orders attached.
I have always intended on appealing each of the orders however was advised by [NN Lawyers] when I was represented in 2019 that I could not appeal an INTERIM order which these are.
On 28 FEb2020 I represented my self in front of [the] Registrar and expressed my view on the advice i received from [NN Lawyers]. [the] Registrar advised that interim orders can be appealed. [The] Registrar subsequently included this observation in her orders.
The interim orders were meant to have a temporary effect and not prolonged.
(As per original)
I note that the balance of the affidavit is irrelevant to the application, and I have no regard to the matters therein deposed to.
The first thing to mention about that explanation is that it cannot explain the failure to file a Notice of Appeal against the orders made by Judge Stewart on 7 February 2020. Having been informed by [the] Registrar on 28 February 2020 that he could appeal, the father still failed to do so within the requisite 28 days from the date of the orders.
As for the proposed appeals against the orders made on 25 November 2019, and 26 November 2019, the difficulty that the father faces, is that there is no evidence presented to corroborate what he says he was told by his solicitors, and that is important, because the claim is inherently unbelievable. Moreover, there is no explanation whatsoever for the subsequent delay in filing the Application in an Appeal once he was informed by [the] Registrar that he was able to appeal interim orders.
Thus, the father has not provided a satisfactory explanation for his failure to file the Notices of Appeal within time, or of his delay in filing his Application in an Appeal seeking extensions of time.
The merits of the appeals
The proposed appeal against the “orders” made on 25 November 2019
This an appeal that has no merit.
The father does not seek to appeal against all of the orders made. He only seeks to challenge that part of paragraph 2 of the orders that only allows him to inspect the Department’s report of 13 November 2019, and not to take a photocopy. He also challenges the refusal by his Honour to allow him to rely on the affidavit referred to in [15] above.
The first thing to note is that the father seeks leave to appeal, but he does not need leave, given that paragraph 2 of the orders relates to a child welfare matter. In any event, the facts relied on in support of his proposed application for leave, do not relate to the challenged order, and do not provide a basis for leave to be granted, if it was required.
That said, I come to the challenge in relation to the affidavit. That is not a challenge which can be maintained. An appeal can only be brought against a decree (s 94AAA(1) of the Act), and there is no decree here (s 4(1) of the Act).
What his Honour did was to make a procedural ruling which did not determine the rights of the parties, or conclude the issue (Commonwealth v Mullane (1961) 106 CLR 166, at p.169).
As to the challenge to part of paragraph 2 of the orders, there is again no decree here that can be the subject of an appeal. It was a procedural ruling which did not determine the rights of the parties. In any event, there is no appealable error identified by the father in his ground of appeal which relates to this issue. Indeed, he asserts, for example, that he was denied “procedural fairness” by not being provided with a copy of the report, and by not being able to cross-examine the author. That overlooks that his Honour read out the report in open court, and that this was an interlocutory hearing where there was no opportunity in any event to cross-examine any witness. However, fatal to the father’s assertions, is that he did not seek to cross-examine anybody, let alone the author of the report, and he did not make any submission to his Honour as to the contents of the report, or as to the qualifications of the author. Further, at the hearing, his Honour did not make any order consequent upon the report; he merely adjourned the proceedings to the next day.
The proposed appeal against the orders made on 26 November 2019
This is also an appeal that has no merit.
First, I again point out that leave to appeal is not required, but if it were, the facts relied on by the father, which are the same as pleaded in the first Notice of Appeal, do not justify leave being granted, and do not address the requirements for that to be achieved.
Secondly, the only paragraph of the orders challenged is paragraph 7, pursuant to which the spend time order of 18 July 2019 was suspended. The father also refers to paragraph 8, which required the parties to make application to a Children’s Contact Service for the purpose of the children spending supervised time with the father, but there is no appealable error by his Honour in making that order; all the father does is point out a practical issue, namely the length of the waiting list to access that service.
At this stage it is important to note that this was an interlocutory hearing, that the matter was adjourned to 7 February 2020 (paragraph 1), in the meantime there was to be a child inclusive conference (paragraph 2) on 15 January 2020, and the parties were to attend upon a psychiatrist nominated by the ICL for the purposes of an assessment and report.
At the hearing of the father’s Application in an Appeal on 5 August 2020, his contention was, that in making paragraph 7, his Honour had failed to take into account his evidence as to the past intervention orders, and which he said demonstrated that the Department’s report was wrong. Thus, I adjourned to specifically read the father’s previous affidavit which he said provided the basis for his contention. In addition, the mother referred me to the reasons for judgment delivered by Hartnett J on 1 May 2020, following the hearing before her Honour on 8 April 2020.
The affidavit identified by the father failed to reveal anything that his Honour should have had regard to in his consideration of, and reliance on, the Department’s report, to make the order that his Honour did.
As for the reasons for judgment of Hartnett J, they were particularly illuminating, because her Honour spent a good deal of time in recording the history of the matter, including the various intervention orders made, and referred extensively to the earlier Department report of July 2019. Further, her Honour’s reasons demonstrated quite clearly how no error was made by Judge O’Sullivan in making paragraph 7 of the orders of 26 November 2019.
However, the father then submitted that the transcript of the hearing on 26 November 2019, would reveal that he raised before his Honour the intervention orders in the context of the Department’s report. Thus, I adjourned the hearing to 2 September 2020, to enable the father to obtain that transcript.
Pausing there, and lest there be any misunderstanding, on my reading of the Department’s report, his Honour was perfectly justified in making the orders that he did. The Department held profound concerns for the children and their welfare, and they considered that the greatest risk to the children was presented by the father. Thus, the Department opined that, until and unless a psychiatric report was obtained, the children were safe living with the mother, and their welfare demanded that their time with the father should be suspended.
His Honour said this at [55]-[57]:
55.It would be a fundamental abrogation of the Court’s responsibility to ignore the information provided to the Family Law Courts by [the Department].
56.It is a serious step to seek an order suspending the children’s time with one parent. The [Department’s] report pursuant to s.69ZW is of importance for that purpose, and is consistent with the position taken by the Independent Children’s Lawyer seeking that very thing.
57.Under s.60CC(2)(b) of the Act, I have to privilege the need to protect the children’s physical, emotional and psychological welfare. In the face of the [Department’s] report, this matter has really been one about risk assessment and cauterising the identifiable risk to the children in the father’s unsupervised care.
The transcript was duly obtained, and the father was correct, namely, he did raise with his Honour the intervention orders in the context of the correctness of the Department’s report. However, the combination of the transcript and his Honour’s reasons delivered on 26 November 2019, demonstrate that his Honour was acutely aware of the father’s submissions, but importantly, that he took them into account in how he treated the Department’s report.
Significantly, whatever the position with prior intervention orders, at the time of the hearing before his Honour, there was an interim intervention order made in favour of the mother and the children, against the father, based on the father’s behaviour towards the mother and the children. This order also corroborated the concerns of the Department set out in their report.
In these circumstances, to repeat, there is no merit in the father’s challenge to paragraph 7 of the orders made on 26 November 2019.
I also note that, as referred to above, his Honour’s order was an interim order, pending the receipt of psychiatric reports, and the holding of a child inclusive conference, and following which the matter would be mentioned on 7 February 2020. Thus, there would be no utility in allowing the appeal and setting aside the challenged order; it would not change anything for the period between 26 November 2019 and 7 February 2020.
The proposed appeal against the orders made on 7 February 2020
Again, leave to appeal is not required, and my previous comments as to the facts relied on by the father apply equally here, given they are again a repeat of what was put in the other two Notices of Appeal.
Paragraphs 2 and 3 of the orders made on 7 February 2020 are the subject of this appeal. Paragraph 2 provided for the father to send gifts and cards for two of the three children’s birthdays in February 2020, and paragraph 3 provided for the parties to engage one of two named psychiatrists to conduct the previously ordered assessments, and then provide reports. Importantly, the parties had still not undertaken the psychiatric assessments required, and no reports were before the court.
Fortunately, at least the child inclusive conference had occurred, and the family consultant had primarily recommended that any contact between the children and the father take place through a Children’s Contact Service, and the parties attend for the psychiatric assessments to take place.
In this regard, it is significant that this hearing was to be just a mention, with the parties having done all that was required of them pursuant to the orders of 26 November 2019. However, as referred to above, that was not the case.
Yet again, there is no merit in this appeal.
With paragraph 2, the father asserts in his grounds of appeal, that there was “insufficient time assigned to the matter on this day”. However, to repeat, this was just a mention hearing, but despite this her Honour spent more time than would normally be allocated to such a hearing, and even delivered a judgment transferring the matter to the Family Court of Australia. There is no merit in this complaint.
The father then contends that her Honour should have ordered “contact” with the children on the basis of what her Honour said in [5]. However, this is a disingenuous submission. In [4] her Honour accurately identifies that there are many factual disputes in this matter, and there is “high parental conflict” present to which the children are exposed. Then, in [5] her Honour indicates that if the father’s claims are ultimately proven to be true, there would be significant concerns about the capacity of the mother to care for the children. However, in [6] her Honour recorded that on the other hand, if the assertions of the mother are true, then the children need to “be protected from physical or psychological harm from exposure to abuse, neglect or family violence in the Father’s care”.
Plainly, her Honour was not able to determine which claims were true at a mention hearing, and thus her Honour was limited in what orders she could make (e.g. see [8], [14], [15], [16], [17] and [18]).
As for paragraph 3, the father complains about the costs involved, and says that he was aware of a psychiatrist whose fees were significantly less. However, this does not reveal any appealable error by her Honour. Her Honour nominated two psychiatrists who are known to the court, and who she considered were well suited to undertake the assessments, and provide the reports.
Finally, as with the appeal against the orders of 26 November 2019, there would be no utility in allowing this appeal and setting aside the orders made; it would not change anything between 7 February 2020 and 8 April 2020, when the proceedings came before Hartnett J.
Prejudice
There is prejudice either way depending on the outcome of the application.
A successful application for an extension of time denies the other party the benefit of the judgment, and requires that party to expend time, money and resources, where in the normal course of events that would be unnecessary.
On the other hand, the refusal of the application denies the applicant the opportunity to correct error.
The tension between these two outcomes found judicial statements that it is always necessary to consider the prospects of the applicant succeeding in the appeal. Here, I have found that there is no merit in any of the appeals, and thus the prejudice to the mother looms large if the application succeeds.
Conclusion
As referred to earlier in these reasons, the ultimate issue here is whether the strict application of the Rules works an injustice. The short answer to that question is that it does not. I have found that there is no satisfactory explanation for the failure to file the first two Notices of Appeal, and with the third, there is no explanation that can be provided. Further, I have found that none of the proposed appeals have any merit, and the mother would be significantly prejudiced if the application succeeded.
In these circumstances the application must be dismissed.
Costs
In the event that the application was dismissed, the mother and the ICL sought orders for costs. The mother just sought her counsel’s fees totalling $5,000 calculated on a party/party basis, and the ICL sought solicitor’s fees of $1,970 and total counsel fees of $3,158, calculated on the Legal Aid scale.
The father opposed any order for costs.
Plainly there is a circumstance here that justifies orders for costs, namely, the father’s application was wholly unsuccessful (s117(2A)(e)), and the only issue can be the respective financial circumstances of the parties. In that regard, the mother is in receipt of Centrelink benefits, and she has the fulltime care of the children. As for the father, he claimed that he had lost his job, which he also claimed was paying $70,000 per year. However, he presented no evidence in support of those claims, and his income has been in dispute in the proceedings below. Thus, I am not satisfied that the father’s financial circumstances should prevent orders for costs being made. Further, I am not prepared to find that there would be hardship to the father if he was required to pay the ICL’s costs (s 117(4)).
Thus, there will be orders for costs as sought by the mother and the ICL.
I certify that the preceding sixty-seven (67) 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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