SIKOUSKA & BEKINSKI
[2020] FamCAFC 59
•10 March 2020
FAMILY COURT OF AUSTRALIA
| SIKOUSKA & BEKINSKI | [2020] FamCAFC 59 |
| FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the documents filed by the applicant are incompetent and do not identify error by the Magistrate – Where there is no satisfactory reason given for the failure to file a Notice of Appeal within the prescribed timeframe – Where there is no utility in granting an extension of time because once the appeal came on for hearing it would be dismissed on the basis of lack of competent grounds of appeal – Application dismissed. COSTS – Where the respondent made an oral application for costs – Where there is no basis for an order for costs to be made – Oral application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPLICANT: | Ms Sikouska |
| RESPONDENT: | Mr Bekinski |
| APPEAL NUMBER: | WEA | L47 | of | 2019 |
| FILE NUMBER: | PTW | 4214 | of | 2017 |
| DATE DELIVERED: | 10 March 2020 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 10 March 2020 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Butcher |
| SOLICITOR FOR THE RESPONDENT: | Butcher Paull and Calder |
Orders
The Application in an Appeal filed on 18 December 2019 be dismissed.
The oral application for costs made on behalf of the respondent father be dismissed.
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 Sikouska & Bekinski 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
APPEAL NUMBER: WEA L47 of 2019
FILE NUMBER: PTW 4214 of 2017
| Ms Sikouska |
Applicant
And
| Mr Bekinski |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before the Court today is an Application in an Appeal filed by Ms Sikouska (“the mother”) on 18 December 2019.
In that application the mother sought a parenting order, but as is readily apparent from the history of this matter, what she was in fact seeking, was an extension of time to file a Notice of Appeal against orders made by Magistrate Stewart on 18 July 2019.
That application first came before this Court on 28 January 2020. As I noted on that occasion, that was the third time the mother had attempted to file documents, but the documents had been returned to her as being incompetent.
What she had to file in this matter was an application, supported by an affidavit and a Draft Notice of Appeal, and what I mean by those documents being incompetent, is that there was no error by the Magistrate identified in the Draft Notice of Appeal, for example, and in the affidavit there was nothing to indicate a basis for an extension of time. In other words, there was no reason proffered as to why the Notice of Appeal had not been filed within the time allowed under the Family Law Rules 2004 (Cth).
In support of the application filed on 18 December 2019 there were two affidavits. The second affidavit, which is the shorter of the two, provided no basis for an extension of time, and it addressed the sections in the Family Law Act 1975 (Cth) (“the Act”) which go to parenting orders. It also set out a narrative in relation to each of those sections in the Act.
There was an attempt in the longer affidavit to provide a reason for the failure to file the Notice of Appeal within time, but that attempt was insufficient. Doing the best I can, the applicant seems to be suggesting that initially there were lawyers who were prepared to act for her in any appeal, but she could not afford the amounts required by those solicitors to be able to act for her, and, as time went by, the 28-day time period expired.
With the Draft Notice of Appeal, as I indicated on the last occasion, no competent ground of appeal was set out therein, and by that I mean, although there were two pages under the heading Grounds of Appeal, no error by the Magistrate was identified in those two pages.
Given that circumstance, on 28 January 2020 I indicated that I had no alternative but to dismiss the application. However, on that day a Ms Simic appeared for the mother; she indicated that she had just been instructed, and sought an adjournment to be able to file competent documents seeking an extension of time. Over the objection by Mr Bekinski (“the father”), I granted the adjournment, but on the strict understanding that it was the final opportunity for the mother to prepare competent documents. I ordered that the application be adjourned to today, and that on or before the close of business on Tuesday 18 February 2020, the mother was to file and serve either amended documents seeking an extension of time to appeal, or fresh documents seeking such an extension of time.
I note that no further documents have been filed, and thus, the position is no better than it was when I considered this matter on 28 January 2020.
The mother appears today in person. I asked her the obvious question, namely, what she wanted to do in this matter, and she said she could not decide. Given that, it falls to me to determine this matter.
The father still opposes the application and, as I say, the position is no better than it was on 28 January 2020.
There is nothing before this Court which provides a satisfactory reason for the failure to file the Notice of Appeal within the time allowed under the Rules, but more importantly, there is no competent ground of appeal set out in the Draft Notice of Appeal that would be relied upon if an extension of time was granted. Thus, it would be of no utility to grant an extension of time, because if that was granted, all that would happen is, once the appeal came on for hearing, it would be dismissed on the basis of lack of competent grounds of appeal.
Thus, for those reasons, the Application in an Appeal filed on 18 December 2019 will be dismissed, and that is the order I propose to make.
Given that, the father’s solicitor has sought an order for costs in the sum of $500, on the basis that he was required to appear, and it was necessary for him to read the documents.
That application is opposed.
With some difficulty in getting answers from the mother, it seems that she opposes the application on the basis of her financial circumstances, namely that she is not working at the moment. There is some confusion about that though, given that she last worked in January 2020, and seemed to indicate that she would be working some time in the future. In any event, she is not working at the moment, she receives Centrelink benefits and child support, she rents premises, and she has no major debts.
In terms of the financial circumstances of the father, I am told that he is in full-time work, and that is the extent of the instructions that Mr Butcher has in terms of the father’s position.
In my view, there should be no order for costs. Given that the mother had not filed any document, the result today was perfectly obvious, and there was no need to go into any detail in relation to the documents, or to come along prepared for an argument, or anything of that nature.
I certify that the preceding eighteen (18) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 10 March 2020.
Associate:
Date: 18 March 2020
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