Ferreday & Layh - [2021] FamCA 648

FAMILY COURT OF AUSTRALIA
Ferreday & Layh [2021] FamCA 648

File number(s): ADC 122 of 2015

Judgment of: BERMAN J

Date of judgment: 28 July 2021

Catchwords: FAMILY LAW – CHILDREN – Best interests – Where final parenting orders were made in 2018 – Where the father has initiated proceedings – Where the mother seeks that the father’s application be dismissed – Consideration of the rule in Rice & Asplund (1979) FLC 90-725 – Discussion of an application to strike out a party’s proceedings – Whether there has been a significant change in circumstances causing the Court to reopen or re-enliven the proceedings - Where there is very little evidence in support of the orders sought by the father – Initiating Application dismissed.

Legislation:
Evidence Act 1995 (Cth) s 135

Family Law Act 1975 (Cth) ss 45A, 69ZN

Family Law Rules 2004 (Cth) r 15.13

Cases cited:
Carriel & Lendrum (2015) FLC 93-640

Freeman & Freeman (1987) FLC 91-857

Marsden & Winch (2009) 42 Fam LR 1

McEnearney & McEnearney (1980) FLC 90-866

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

Searson & Searson (2017) FLC 93-788

Number of paragraphs: 51

Date of hearing: 28 July 2021

Place: Adelaide

Solicitor for the Applicant: Self Represented

Counsel for the Respondent: Ms Poetsch

Solicitor for the Respondent: Southern Community Justice Centre
ORDERS

ADC 122 of 2015

BETWEEN:
MR FERREDAY
Applicant

AND: MS LAYH
Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

28 JULY 2021

THE COURT ORDERS THAT:
1.The Initiating Application filed on 17 March 2021 and the Amended Initiating Application filed 26 July 2021 are dismissed.

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 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).
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 the pseudonym Ferreday & Layh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BERMAN J

By Initiating Application filed 17 March 2021, Mr Ferreday (“the father”) seeks by way of final orders that the child X born in 2008 (“the child”) be forthwith returned to the C Town School. In addition, the father also sought that:
The Parenting and Child affecting orders of 24/8/2018 be discharged or relevantly modified to facilitate reduction of secret Abusive suffering for X and a reasonable potential establishment of her Mental Health, Well-being and self‑determining develop[pment.[1]
(As per the original)
[1] Initiating Application filed 17 March 2021, page 2, paragraph 2.
Proposed order…

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.

Continue reading Ferreday & Layh

Details

AGLC: Ferreday & Layh [2021] FedCFamC1A 29
Case: [2021] FamCA 648
Decision Date: 28 September 2021

CaseChat Overview and Summary

The applicant sought to review the Appeal Registrar's refusal to file a Notice of Appeal and an extension of time to do so. The dispute concerned the applicant's attempt to appeal a decision made by a trial judge, with the Appeal Registrar having previously refused to file the Notice of Appeal. The matter came before Strickland J in the Family Court of Australia.

The primary legal issues before the court were whether the Appeal Registrar had erred in refusing to file the Notice of Appeal, and whether an extension of time should be granted for the filing of that Notice. Crucially, the court was required to determine if there was any basis for permitting the filing of the Notice of Appeal, and if so, whether the proposed appeal itself had merit and identified appealable error on the part of the trial judge.

Strickland J found that there was no basis whatsoever for permitting the applicant to file the Notice of Appeal. His Honour reasoned that even if the Notice of Appeal were filed, it would inevitably be dismissed as it failed to identify any appealable error by the trial judge. Consequently, the court dismissed the application to review the Appeal Registrar's decision and the application for an extension of time to file the Notice of Appeal. The applicant was also put on notice that further baseless applications could lead to an application for a vexatious proceedings order.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 31 August 2021 seeking an extension of time to file a Notice of Appeal be dismissed.

2. The Application in an Appeal filed on 31 August 2021 seeking to review the exercise of power of the Appeal Registrar be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	ADC 122 of 2015
Judgment of:	BERMAN J
Date of judgment:	28 July 2021
Catchwords:	FAMILY LAW – CHILDREN – Best interests – Where final parenting orders were made in 2018 – Where the father has initiated proceedings – Where the mother seeks that the father’s application be dismissed – Consideration of the rule in Rice & Asplund (1979) FLC 90-725 – Discussion of an application to strike out a party’s proceedings – Whether there has been a significant change in circumstances causing the Court to reopen or re-enliven the proceedings - Where there is very little evidence in support of the orders sought by the father – Initiating Application dismissed.
Legislation:	Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth) ss 45A, 69ZN Family Law Rules 2004 (Cth) r 15.13
Cases cited:	Carriel & Lendrum (2015) FLC 93-640 Freeman & Freeman (1987) FLC 91-857 Marsden & Winch (2009) 42 Fam LR 1 McEnearney & McEnearney (1980) FLC 90-866 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 Searson & Searson (2017) FLC 93-788
Number of paragraphs:	51
Date of hearing:	28 July 2021
Place:	Adelaide
Solicitor for the Applicant:	Self Represented
Counsel for the Respondent:	Ms Poetsch
Solicitor for the Respondent:	Southern Community Justice Centre

ADC 122 of 2015
BETWEEN:	MR FERREDAY Applicant
AND:	MS LAYH Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	28 JULY 2021