Ferreday and Layh

[2019] FamCA 285

FAMILY COURT OF AUSTRALIA

FERREDAY & LAYH [2019] FamCA 285

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where the review is a de novo judicial review – Where the applicant has not attended court – Where the matters the applicant seeks to agitate have been heard and decided in previous judgment – Application dismissed – Costs listed to another date.

APPLICANT: Mr Ferreday

RESPONDENT: Ms Layh

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 122 of 2015

DATE DELIVERED: 22 March 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 22 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Southern Community Justice Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hemsley

INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

1. That the Application in a Case filed 11 February 2019 is dismissed;

2. That all outstanding applications for costs are listed for hearing at 9.15 am on 11 April 2019.

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 Ferreday & Layh 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).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 122 of 2015

Mr Ferreday

Applicant

And

Ms Layh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant in the proceedings is Mr Ferreday. The respondent is Ms Layh and there is an Independent Children’s Lawyer (“ICL”).

2. Following an extended hearing, orders were made on 24 August 2018 which resolved to finality parenting issues in respect of the child X born in 2008 (“the child”), together with settlement of property as between the parties. In relation to those orders, the applicant filed a Notice of Appeal on 20 September 2018 in application number SOA69 of 2018.

3. On 11 October 2018, the applicant filed an application in a case seeking a stay of the orders of 24 August 2018 pending the disposal of the appeal. On 25 October 2018, having heard submissions, I dismissed the husband’s application to stay.

4. The appeal has been listed for 25 March 2019; however, notwithstanding the listing of the applicant’s appeal by Application in a Case on 11 February 2019 he seeks a review of a decision by Registrar Paxton to reject his application for a further stay of the orders. The review has come to me, and I hear this application as a de novo judicial review.

5. The applicant has not attended. Madam Court Officer has called the name of the applicant in the precincts of the Court, and I am satisfied that given the time that I have allowed for any late attendance, he has not attended. There is nothing on the Court file, and no notice or advice has been provided to the Registry that the applicant has made contact in order to provide an explanation for any delay in his attendance. It may be that the applicant considers that whilst there was perhaps some merit in his application when it was filed in February, given that this application is listed on the last sitting day before the commencement of his appeal, it has now no utility. In any event, he is not here, and in the circumstances of this case, taking into account its long history, I propose to proceed to hear the application.

6. Paragraph 1 is a further application for stay. Paragraph 2 also seeks an application for a stay but is in terms that are difficult to understand. Paragraph 2(a) refers to the proposition that the stay is required in order to limit the alleged damage to the child consequent upon stress, duress, removals and orders, 2(b) relates to the processing of a split of the applicant’s pension as not referred in the order of 24 August 2018 but rather, in [293] and [294] of the reasons for judgment. Even the most cursory consideration of the judgment would suggest that what it is the applicant is referring to is substantially misconceived.

7. Paragraph 3 appears also to relate to the same issue of a split of the applicant’s pension. Paragraph 4 relates to something which occurred in another Court, namely, in the “Civil Court of South Australia”, and [5] seems to be a mixture of an order that seeks an adjustment to orders of 24 August 2018 in respect of the properties and that in some way it is linked to a consideration under s 60CC of the Family Law Act 1975 (Cth) in respect of a property held in trust for the child. Again, these matters were raised in subsequent judgments. The presentation by the applicant is incomprehensible.

8. In the circumstances of this case and doing the best that I can to try and understand what it is that the applicant is seeking, I am of the view that the principal issue, in fact, the only issue that I am able to identify is a further application for a stay of the orders made 24 August 2018.

9. The circumstances have not changed. The reasons provided by lengthy judgment on the last occasion in respect of the refusal of the applicant’s stay pending the appeal are matters that are of current application. The matter has been decided in its entirety by me in a previous hearing.

10. For those reasons, then, I propose to dismiss the Application filed 11 February 2019.

11. There is now an application for costs by the wife’s counsel and counsel for the ICL. Whilst it could reasonably have been anticipated by the applicant that if his application was unsuccessful or for some reason he did not seek to proceed with it, the very fact that he brought it and sought to have it listed may well excite an application for costs, having said that, in this particular case, I am not prepared to simply consider the question of costs without some notice to the applicant.

    I propose to reserve the question of the respondent’s costs and those of the ICL to a date that I will now fix for the convenience of counsel who have appeared today.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 March 2019.

Associate:

Date: 7 May 2019