Ferreday and Layh
[2020] FamCAFC 90
•26 March 2020
FAMILY COURT OF AUSTRALIA
| FERREDAY & LAYH | [2020] FamCAFC 90 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW DECISION OF THE APPEAL REGISTRAR – Where the applicant seeks to review the decision of the Appeal Registrar to refuse to accept a Notice of Appeal for filing – Where the Appeal Registrar patiently provided the applicant with a number of opportunities to prepare a competent Notice of Appeal – Where the proposed Notice of Appeal did not identify alleged error or errors of the primary judge, was a stream of consciousness and was unintelligible – Where there is no basis to allow the Notice of Appeal to be filed – Application dismissed. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Ferreday |
| RESPONDENT: | Ms Layh |
| FILE NUMBER: | ADC | 4198 | of | 2019 |
| APPEAL NUMBER: | SOA | 1 | of | 2020 |
| DATE DELIVERED: | 26 March 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 26 March 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | NA |
| LOWER COURT MNC: | NA |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms McMorrine |
| SOLICITORS FOR THE RESPONDENT: | Southern Community Justice Centre |
Orders
The Application in an Appeal filed on 31 December 2019 be dismissed;
To the extent necessary the Application in an Appeal filed on 18 February 2020 be dismissed.
There be no order as to costs.
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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
APPEAL NUMBER: SOA 1 of 2020
FILE NUMBER: ADC 4198 of 2019
| Mr Ferreday |
Applicant
And
| Ms Layh |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the court today is an Application in an Appeal filed by Mr Ferreday (“the father”) on 31 December 2019, seeking, it seems, to review a decision of the Appeal Registrar to refuse to accept a Notice of Appeal for filing. I describe it in that way because it is indicated in the document that that is the topic of the application, but when I go to the orders that are sought, they do not bear any relationship to an application for review. Indeed, what is in the orders sought, is unintelligible.
There is also before the court, a further Application in an Appeal filed by the father on 18 February 2020, in which he seeks leave to adduce further evidence, that being evidence comprised in an affidavit also filed on 18 February 2020.
By way of background, the order the subject of the Notice of Appeal, which the Appeal Registrar refused to receive for filing, was an order made by Berman J on 12 November 2019. That order was to the effect that an Initiating Application sought to be filed by the father, be rejected for filing.
That Initiating Application comprised some 27 pages with an attached annexure. Doing the best I can with that application, it seems that the father was seeking parenting orders in relation to the child of this relationship. However, without putting too fine a point on it, the contents of that Initiating Application are also unintelligible.
To put that further into context, namely the parenting orders, there were final parenting and property settlement orders made by Berman J on 24 August 2018. The father filed an appeal against those orders, and on 13 June 2019 the appeal was dismissed.
I note that subsequent to that, there were further proceedings, including proceedings by way of appeal filed on behalf of the father, all of which were unsuccessful, and the various appeals and applications were dismissed.
Coming then to the decision which is the subject of the application before me. To repeat, it is a decision by the Appeal Registrar to refuse to receive for filing a Notice of Appeal against the order that I have just identified made by Berman J. The application is opposed by Ms Layh (“the mother”).
The Appeal Registrar patiently provided the father with a number of opportunities to prepare a competent Notice of Appeal. For example, he first attempted to file his Notice of Appeal in late November 2019. That was refused for filing. There was a further attempt made on 2 December 2019. The result was the same. Yet a further attempt was made on 6 December 2019. Again, the result was the same. Then another attempt was made on 9 December 2019 and, again, the result was the same. A final attempt was made on 10 December 2019, which had the same fate. On each occasion the father attempted to file the Notice of Appeal, he was told the same thing by the Appeal Registrar, and reading from one of the Appeal Registrar’s emails to him:
You are required to articulate grounds of appeal in Part E of the Notice of Appeal and you have not done so. What you have included at Part E of your Notice of Appeal:
- Fails to articulate the alleged error or errors of the Judge in making the Orders of 12 November 2019; and
- Appears to be streams of consciousness rather than articulated errors.
Furthermore, the Orders that you propose the Full Court to make generally are not within the power of the Full Court and appear to misconstrue the role of the Court (for example, see: 1.3 and 10).
I can only but agree with what the Appeal Registrar has said to the father in refusing to file his Notice of Appeal. She has described that Notice of Appeal accurately.
As I said at the start of today, this is an application to review the exercise of power by the Appeal Registrar. What that means is that it is not for me to determine whether the Appeal Registrar was right or wrong in the exercise of power, but instead, I am to treat this matter de novo, namely what I have to consider is whether it is now appropriate to allow the father to file that Notice of Appeal.
I can say categorically that there is no basis whatsoever for the father to be able to file that Notice of Appeal. It is unintelligible, and I add that to what the Appeal Registrar has said in relation to it. It fails to articulate any appealable errors by the trial judge. It just contains a narrative which, to repeat, is incomprehensible.
It would also be futile to allow the Notice to be filed, because the minute it was filed, it would then need to be dismissed because it does not identify appealable errors by the trial judge. There are simply no competent grounds of appeal.
Similarly, the Application in an Appeal filed on 18 February 2020, and the affidavit in support thereof, is unintelligible, and there is no basis to allow what is described as further evidence to be admitted for the purposes of this hearing. And further, I have sat and listened to the father today for 20 minutes, and not once in that 20 minutes did he say anything which had any relevance to the application which is before the court today. It was a repeat, as best as I can discern, of what he has put in writing in the various documents to which I have referred.
This process is a complete waste of time, a waste of the Court’s time, a waste of the father’s time, and a waste of the mother’s time. It is also a waste of taxpayers’ money in paying for and setting up and arranging this Court and this hearing. It is a waste of time for my staff who are sitting here patiently listening to all this. This has to stop, and I propose to dismiss the application.
I certify that the preceding fourteen (14) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 26 March 2020.
Associate:
Date: 20 April 2020
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