Philkin & Philkin (No 4)
[2021] FedCFamC1F 294
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Philkin & Philkin (No 4) [2021] FedCFamC1F 294
File number(s): DGC 2894 of 2018 Judgment of: MCGUIRE J Date of judgment: 20 December 2021 Catchwords: FAMILY LAW – PROPERTY – Review of a Registrar’s decision – judicial or administrative functions – application for review made out of time – merits of application – application dismissed Legislation: Family Law Act 1975 (Cth) ss 106A, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.03 and r 14.05
Cases cited: Philkin & Philkin (No.2) [2020] FamCAFC 264
Philkin & Philkin [2021] FedCFamC1F 22
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 26 November 2021 Place: Hobart Counsel for the Applicant: Mr Thompson Solicitor for the Applicant: Jeff Thompson Counsel for the Respondent: Ms Mansfield Solicitor for the Respondent: Ryan Carlise Thomas Counsel for the Independent Children's Lawyer: Mr Metaxas Solicitor for the Independent Children's Lawyer: Robert Halliday and Associates ORDERS
DGC 2894 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PHILKIN
Applicant
AND: MS PHILKIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
20 DECEMBER 2021
THE COURT ORDERS THAT:
1.That the husband's Application for Review filed the 20 October 2021 is dismissed.
2.That the husband pay the costs thrown away of the Independent Children’s Lawyer in respect of the Review Applications dismissed in a quantum of $2,590, such to be paid within 28 days of the date of these Orders.
3.That the husband pay the wife’s costs of and incidental to the husband’s Review Applications listed before Justice McGuire on 25 November 2021 in a quantum of $5,800, such to be paid within 28 days of the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Philkin & Philkin (No.4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
APPLICATION
I have before me what purports to be an Application for Review by the husband, Mr Philkin, made on an Application in a Case dated 19 August 2021, but apparently filed and sealed on 20 October 2021. The Application seeks the following:
1.Review of decision of the Senior Registrar [...] dated 5 November 2020 to sign the exclusive sales agreement for the sale of the property at [FF Street, Suburb F] the title of which is registered under the name of Mr [Philkin].
2.Review of decision of the Senior Registrar [...] dated 18 November 2020 to sign the exclusive sales agreement for the sale of the property at [HH Street, Suburb F] the title of which is registered under the name of Mr [Philkin].
3.Review of decision of the Senior Registrar [...] dated 5 November 2020 to sign the exclusive sales agreement for the sale of the property at [HH Street, Suburb F] the title of which is registered under the name of Mr [Philkin].
I also have before me three further Applications for Review filed by the husband and listed before me by notation of orders of the Registrar made 28 October 2021 as follows:
1.The hearing listed on 29 October 2021 before Senior Judicial Registrar [...] be vacated.
2.The hearing listed on 2 December 2021 before Judicial Registrar [...] be vacated.
3.Pursuant to the Federal Circuit and Family Court of Australia Central Practice Direction, leave must be sought before any further Applications in a Proceeding are filed.
THE COURT NOTES THAT:
A.The review applications filed 24 February 2021 (of Senior Judicial Registrar [...]), 19 August 2021 (of Senior Judicial Registrar [...]), 6 October 2021 (of Senior Judicial Registrar [...]) and 26 October 2021 (filed on 20 October 2021 – pertaining to review of a registrar’s administrative decision) are all listed before the Honourable Justice McGuire on 26 November 2021.
B.The stay application contained within the Application in a Proceeding filed on 19 October 2021 will be listed for determination by the Honourable Justice Hartnett on 17 November 2021.
C.The Application in a Case filed on 2 October 2020 (application to declare the Husband a vexatious litigant) has been referred to the National Assessment Team for listing before a Judge.
D.The substantive proceedings (as contained in the documents filed on 17 February 2020 – being the transfer date) is listed for final hearing before Justice Hartnett from 16 – 18 February 2022.
Whilst I am now dealing with the above-mentioned Application in a Case seeking a review and filed 20 October 2021, the balance of the Applications for Review before me were dismissed on the 26 November 2021 for want of prosecution. No argument was taken by the husband's solicitors as to that action.
There are substantive property and parenting issues between the parties. Those proceedings have been bifurcated with Hartnett J listing a trial in respect of financial issues in February 2022.
Relevantly, Hartnett J made procedural, interim and interlocutory orders, all by consent, on 13 July 2020, which provided inter-alia for the sale of properties at FF Street, Suburb F, HH Street, Suburb F and 2 HH Street, Suburb F, all in the state of Victoria. Order 3 of those orders, with great specificity, provided for the conduct of the sales and the obligations of the husband and wife accordingly as follows:
(a)the sales be conducted by a real estate agent (“the agent”) to be selected by the Applicant Wife nominating 3 agents within 14 days, the Respondent Husband selecting one of those agents within 7 days and if the Respondent Husband fails to nominate an agent, the Applicant Wife be at liberty to do so or she select an agent appointed by the President of the REIV or his/her nominee;
(b)the parties are to do all things and sign all documents required of the selling agent including to progress the sales including signing any exclusive authority;
(c)the [FF Street] property, the [3 HH Street] property and the [2 HH Street] property shall be listed for sale by auction, or private sale as advised by the selling agent at a date to be determined by the selling agent;
(d)the list price shall be as agreed between the parties and the selling agent and failing agreement:-
(i) the list price of the [FF Street] Property shall be $800,000.00;
(ii) the list price of the [3 HH Street] shall be $650,000.00; and
(iii) the list price of the [2 HH Street] shall be $450,000.00.
(e)the sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property at the conclusion of the auction and/or private sale that is at least 90% of the list price shall be accepted by the parties as the sale price;
(f)the parties are to co-operate in every way with the selling agent in relation to the marketing of the properties for sale including making the key readily available, allowing inspection of the properties at all times reasonably requested by the agent and ensuring that each of the properties are clean, neat and in good order at the time of inspection by any prospective buyer;
(g)the parties be at liberty to offer to individually purchase a property. In the event that a property is purchased by a party to the proceeding each party is jointly liable for the agent and selling costs (including conveyancing fees);
(h)a Solicitor or Conveyancer shall be appointed by the selling agent to have the care of the Conveyancing of the sale of the property;
(i)upon agreement being reached for sale of a property the parties shall execute the contract of sale and all other documents necessary to complete the sale of a property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
Order 11 of the Consent Orders of 13 July 2020 provided:
In the event that either party refuses or neglects to execute a deed and/or instrument in compliance with the provisions of these Orders, the Registrar or Deputy Registrar of the Family Court of Australia, Melbourne Registry, is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) (‘the Act’) to execute all deeds and/or instruments in the name of either of the parties and do all acts and things to give validity and operation to the deeds and/or instruments.
It is uncontroversial that in or about October 2020 the wife activated the provisions of Order 11 being s 106A on the alleged non-compliance by the husband. I do not understand the husband before me to assert that he did comply with his obligations under the Consent Orders of 13 July 2020.
It is relevant to observe that prior to this Application seeking a review of the ‘decisions of Senior Registrar [...], the husband had sought to address the Consent Orders of 13 July 2020 in two separate ways:
(a)On 24 August 2020 the husband lodged an Appeal in respect of the consent orders. That Appeal was ultimately dismissed.[1] Relevantly, the Full Court per Strickland J observed at [22] – [25] of the Court's reasons:
[1] Philkin & Philkin (No.2) [2020] FamCAFC 264.
22.… 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.
23.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.
24.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.
25.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.
(b)On 19 July 2021 the husband brought an interim and interlocutory Application before Hartnett J seeking the following orders:
1.That the matter be heard ex parte.
2.That an injunction be issued to stop all dealings relating to the contract for sale of the [FF Street] Property until the matter is heard and dealt with by the Family Court.
3.That an injunction be issued to stop all dealings relating to the properties listed in paragraph 22 of the Fathers Affidavit sworn on 16 07 21.
The properties being:
a) [2 HH Street, Suburb F].
b) [HH Street, Suburb F].
c) [PP Street, Suburb QQ].
Unsurprisingly, Hartnett J did not proceed ex parte. Ultimately, by orders of 16 September 2021 her Honour dismissed the husband's Application.[2]
[2] Philkin & Philkin [2021] FedCFamC1F 22.
It is clear, therefore, that the husband has, prior to this Application, brought two unsuccessful challenges to the orders made by consent on 13 July 2020.
In her response to the Application by the husband filed 19 July 2021, the wife seeks an order that the husband be declared a vexatious litigant. I am not seized of that Application which I understand is yet to be dealt with by her Honour.
THE RELEVANT LEGISLATION
Section 254 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“FCFCOA Act”) provides for the delegation of power to Registrars of the Court. Subsections (2)(a) – (s) give numerous examples of those powers.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide at Rule 14.03 for the delegation of powers to Senior Judicial Registrars and Judicial Registrars as follows:
(1)Each power of the Federal Circuit and Family Court (Division 1) referred to in column 1 of an item of the table in clause 2 of Schedule 4 and marked with a tick (ü) in column 3 of that item is delegated to each Senior Judicial Registrar of the Court.
(2)Each power of the Federal Circuit and Family Court (Division 1) referred to in column 1 of an item of the table in clause 2 of Schedule 4 and marked with a tick (ü) in column 4 of that item is delegated to each Judicial Registrar of the Court.
Schedule 4 to the Rules at clause 2 under the title 'Delegations to Senior Judicial Registrars and Judicial Registrars' at items 27.3 and 27.4 provides:
Item Column 1
Provision
Column 2
Description of Power
Column 3
Senior Judicial Registrar
Column 4
Judicial Registrar
27.3 Section 106A FLA To make order directing a person to execute a deed or instrument ü ü 27.4 Section 106A FLA To direct a Judicial Registrar to sign documents ü not applicable
There is no dispute before me that Senior Judicial Registrar [...] holds that title and appointment. I note that the issues in question occurred prior to the commencement of the current Rules from 1 September 2021, but no argument was mounted in respect of Senior Judicial Registrar (as she now is) [...] having the power to make the orders under previous Rules and the current provisions simply echoing the previous rules and is also embodied in the transitional provisions.
Rather, the husband argues for a review of the activation of those powers pursuant to s 106A on three separate occasions. Essentially, he argues a lack of procedural fairness in that he was not informed of the activation of the execution of the documents pursuant to s 106A of the Act and Order 11 of the Consent Orders of 13 July 2020.
Section 256 of the FCFCOA Act provides for a review of the exercise of the power of a Delegate Registrar as follows:
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
The FCFCOA Rules at Rule 14.05 provide for Application for Review of Order of Decision as:
(1)A party may apply for a review of an exercise of power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
(2)A party may apply for a review of any other exercise of a power under these Rules by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
(3)The applicant must serve a sealed copy of the application on each other party to the proceeding as soon as practicable and in any event not later than 7 days after it is filed.
(4)An Application for Review must be listed for hearing as soon as possible and, unless it is not practical to do so, within 28 days of the date of filing.
Rule 14.07 provides that the hearing of an Application for Review will proceed as a hearing de novo.
CONSIDERATION
I am of the view that the Application for Review must fail on three separate bases being:
(1)The Application is made out of time and without to leave to do so;
(2)The Application seeks the impermissible review of an administrative act and not of a delegation of judicial decision or order; and
(3)On its merits.
Time
The acts or decisions complained of and sought to be reviewed occurred, according to the applicant himself, on 5 November 2020 or 18 November 2020. These Applications for Review were filed 20 October 2021. I can locate no Application for leave or such been granted. The Rules provide that the Application is to be filed within 'within 21 days after the order or the decision is made'.
The husband's counsel submitted before me that the husband did not know of the activation of the s 106A order until being before Hartnett J on his Application in a Case on 19 August 2021. I cannot accept this submission. The wife complied in a timely fashion with her obligations under the Consent Orders of 13 July 2020. She provided the exclusive sales authorities to the husband or through his solicitors. There was no response. The husband entered into direct communication, allegedly threatening, with the Real Estate Institute of Victoria and/or specific agents and/or conveyancers. Significantly, the husband wrote to the Registry on 19 October 2020, stating that the properties “would not be sold”. The wife had written to the Registry on 5 October 2020 seeking an activation of s 106A. The husband was copied into this correspondence. The wife's solicitors wrote again to the Registry on 19 October 2020 in similar terms. Again, the husband was copied into the correspondence. On 9 October 2020 the wife's solicitors received a copy of an email from the husband addressed to the Registrar confirming his position that the properties would not be sold. I am, therefore, entirely satisfied that the husband was aware of the wife activating Order 11 of Consent Orders of 13 July 2020 and hence s 106A.
The Application is therefore brought out of time without leave.
IS THE DECISION REVIEWABLE OR AN ADMINISTRATIVE DECISION
The delegation of power to Registrars, referenced above pursuant to Rule 14.03 of the Rules and clause 2 of Schedule 4 thereof, specifically describes the power being one “to make an order directing a person to execute a deed” or “to direct Judicial Registrar to sign documents pursuant to s 106A of FLA”.
In this matter the husband does not seek to review Order 11 of the Consent Orders of 13 July 2020 which is, in fact, the order made anticipating and permitting s 106A of the FLA and which was made by consent (although the husband has clearly already unsuccessfully challenged those orders by way of Appeal and Application in a Case to Hartnett J). Rather, the husband seeks to review the action of the Registrar in signing the exclusive sales agreements in respect of the relevant properties.
It must be emphasised here that s 106A(1) enables the Court, in its discretion, to “appoint an officer of the Court or other person to execute the deed or instrument…”. As such, the section contemplates the execution of a deed or instrument by lay – persons which common sense suggests may, at times, be circumstantially convenient or necessary. This cannot, therefore, be the delegation of a judicial function. That is, the power delegated is to make the order under s 106A, which in this case was made by consent on 13 July 2020, and is clearly indicated in the Schedule to the Rules.
In Vibbard & Garcia[3] the Full Court considered an Appeal from a Federal Magistrate (as he then was) dismissing a Review application of the decision of a Registrar refusing to list a matter for urgent hearing. Their Honours considered, with approval, a decision of the F. M. Halligan (as he then was) in Myers & Myers[4] in respect of the judicial/administrative distinction where his Honour determined that such distinction rested on whether the delegated function required addressing for or implication for any Rule of the Court, such as in that case an abridgement of a prescribed time for service, as against “purely administrative tasks performed by staff in the court registry in support of the functioning of the court.”
[3] [2012] FamCAFC 114.
[4] [2011] FMCAfam 1104.
In the matter now before me it is the making of the order under s 106A that is the judicial function delegated by the Act and Rules and here such order was made by consent on 13 July 2020 in a form anticipatory of any default. The signing of the documents is, in my view, a purely administrative flow – on function and hence the Application for Review must fail.
MERITS OF THE APPLICATION
In the event that I might be in error as to the two findings above, I address de novo the Registrar's decision to sign the exclusive sale authorities.
The husband consented to the orders of 13 July 2020. Those orders, in themselves, contemplate action on default of the obligations of either party. Section 106A provisions were incorporated in the orders at Order 11 permitting a Registrar to sign documents in the event of default.
The evidence easily satisfies me of the husband's default of his obligations under the orders. Notably, he subsequently entered an Appeal, which was ultimately unsuccessful, and then an Application before Hartnett J seeking to stop all dealings in respect of the relevant properties. That Application was also unsuccessful.
There is neither evidence before me, nor submissions by the husband's Counsel, that he did, in fact, comply with his obligations under the Consent Orders of 13 July 2020. To the contrary, the wife's Affidavit deposes to the husband's default.
On 5 October 2020 the wife's solicitors copied the husband into a letter to the Registrar requesting Order 11 of the Consent Orders of 13 July 2020 be invoked. The wife produces a copy of that correspondence as an exhibit to her Affidavit of 9 August 2021.
The husband was again copied into a letter from the wife's solicitors to the Registrar of 19 October 2020 also requiring the Registrar to sign relevant documents pursuant to s.106A and Order 11 of the Consent Orders of 13 July 2020.
On 19 October 2020 the wife's solicitors received a copy of an email from the husband directed to the Registrar stating “the properties have leases. They will not be sold vacant possession.”
The husband's counsel before me argues that the husband was not accorded procedural fairness and did not know of the wife's requests to the Registrar to invoke s 106A, as long ago as October 2020. I reject that submission on the evidence before me. It follows that the orders of 13 July 2020 contemplate action pursuant to s 106A should either party be in default. The husband was in default of his obligations under the orders. The wife invoked s 106A and did so on notice to the husband. The signing of the exclusive sales authorities was therefore an entirely proper action and one necessarily following the husband's default.
The husband's Application for Review is dismissed.
COSTS
At the conclusion of submissions in respect of the Review, I invited and received submissions from counsel for each of the parties in respect of costs dependent on the determination of the Review in respect of the wife’s application. Counsel for the Independent Children's Lawyer appeared on the Applications for Review dismissed on that day and which involved parenting issues. Mr Metaxas of counsel indicated his intention to apply for costs at the conclusion of the contested Review Application heard that day. He is effectively instructed by a Legal Aid Commission. His costs are reasonable and conservative at $2,590, which I am told is the Legal Aid rate including preparation and appearance.
The husband opposes any costs order in favour of the ICL.
Matters of costs are dealt with pursuant to s 117 of the FLA with a general rule that each party pay their own costs. That general rule is, however, subject to a discretion at subsection (2) for the Court to make an award of costs if there are “justifying circumstances”. It is well-established that the term justifying circumstances is not to be read as synonymous with exceptional circumstances. In considering whether there are circumstances towards a costs order, and the exercise of the discretion, then the Court is mandated to address the factors set out in subsection (2A) of s 117.
In this matter the ICL is funded by the public purse. The husband is self-employed and I am told has a limited income. He has no dependents.
The husband is not in receipt of a grant of Legal Aid.
Counsel for the ICL references the conduct of the proceedings by the husband in making Applications for Review but not prosecuting the same. In this sense, the husband was entirely unsuccessful. The ICL was required to prepare for the Review Application with there being no prior indication that the Applications would not be prosecuted.
This is not a matter where offers of settlement are relevant.
In all of those circumstances with the emphasis on the need to prepare for non-prosecuted applications, I am of the view that the ICL should have his/her costs thrown away in a sum of $2,590. Such costs should be paid within 28 days of the date of these orders.
Secondly, Counsel for the wife, Ms Mansfield, also makes an Application for costs as against the husband. She claims counsel's fee on appearance of $3,300 and preparation for two hours totalling $1,100 being a total of $4,400 plus solicitor’s instructing costs of $1,400, being a grand total of $5,800.
Again, the husband opposes the application for costs.
The husband's financial circumstances are set out above. His solicitor’s costs advice provided only after the hearing shows that the husband has accrued legal costs of approximately $52,000.
The wife works part-time with a gross income of $600 per week. These being property proceedings, she is not entitled to Legal Aid. She is solely responsible for the financial support of the three children of the relationship who live with her in circumstances where the husband is some $15,000 in arrears of child support, albeit subject to a pending objection by him to the Child Support Agency. The wife says that the husband is also in arrears in respect of an extant spousal maintenance order or arrangement whereby he contribute $250 per week to her maintenance.
The wife's counsel was vocal in her criticism of the husband and his legal representative generally in respect of the substantive issues and in the prosecution of this Review Application. Suffice to say that the husband has been wholly unsuccessful in the Application. Again, this is not a matter where offers of settlement are relevant.
Whilst I am mindful of the husband’s claimed financial position being apparently precarious, it is well-established that impecuniosity is not a bar to a costs order. In any event, the evidence before me is not sufficient to satisfy me that he is impecunious. I note his arrears in respect of his financial support obligations for both the children and the wife. The husband has been unsuccessful in his Review Application which is, of course, a discrete Application which must be brought in an informed and, where represented, advised manner. The nature of the Application itself and its dismissal gives some credence to the vigorous submissions of Ms Mansfield of Counsel.
In circumstances where the wife is put to financial impost as a respondent to an Application of this type which is ultimately unsuccessful, then I am of the view she should have her costs. The costs sought, in my view, are again reasonable and conservative. There will be an order that the husband pay the wife's costs of and incidental to the unsuccessful Review Application in a sum of $5800, such to be paid within 28 days of the date of these orders.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 20 December 2021
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