PHILKIN & PHILKIN - [2020] FamCAFC 263

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

2018

APPEAL NUMBER:

SOA

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…

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.

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Details

AGLC: PHILKIN & PHILKIN [2020] FamCAFC 263
Case: [2020] FamCAFC 263
Decision Date: 2 November 2020

CaseChat Overview and Summary

The case involves a family law appeal by the father, Philkin, against a decision made by the Family Court of Australia. The father sought extensions of time for filing various notices and applications related to the appeal. The Court of Appeal was tasked with deciding whether the father's application for extensions of time should be granted. Additionally, the respondent mother and the Independent Children’s Lawyer sought orders for costs against the father.

The Court of Appeal considered whether the father had provided an adequate explanation for the delays in filing the notices and the application for extensions. It also assessed whether the father's application met the criteria for leave to appeal if it were required, and if the facts presented justified such leave. Furthermore, the Court examined the merits of the appeals and the potential prejudice to the respondent if the application for extensions were to be granted. The Court determined that strict adherence to the Rules would not result in an injustice in this case.

The Court of Appeal dismissed the application for extensions of time. It found that there was no adequate explanation for the delays, and that the father’s application did not meet the criteria for leave to appeal, even if it were required. The Court held that the appeals had no merit and that granting the application would cause significant prejudice to the respondent. Consequently, the Court ruled that the strict application of the Rules did not result in an injustice. The Court ordered the father to pay the costs of the respondent and the Independent Children’s Lawyer, as the application was wholly unsuccessful, and the father's financial circumstances did not prevent the imposition of costs. The form of the orders is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

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.

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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