Ferreday & Layh
[2021] FedCFamC1A 29
•28 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ferreday & Layh [2021] FedCFamC1A 29
Appeal from: Ferreday & Layh [2021] FamCA 648 Appeal number(s): SOA 56 of 2021 File number(s): ADC 122 of 2015 Judgment of: STRICKLAND J Date of judgment: 28 September2021 Catchwords: FAMILY LAW – Application in an Appeal – Review exercise of power of Appeal Registrar to refuse to file a Notice of Appeal – Hearing de novo – Where there is no basis whatsoever for the applicant to be permitted to file the Notice of Appeal – Where in the event that the Notice of Appeal was filed it would then be dismissed because it does not identify appealable error by the trial Judge – Applicant put on notice that if he chooses to make another incomprehensible and baseless application he may find himself facing an application for a vexatious proceedings order – Application dismissed. Legislation: Family Law Act 1975 (Cth) Cases cited: Ferreday & Layh [2020] FamCAFC 90
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs: 23 Date of hearing: 28 September 2021 Place: Adelaide Solicitor for the Applicant: In Person Counsel for the Respondent: Ms Poetsch Solicitor for the Respondent: Southern Community Justice Centre ORDERS
SOA 56 of 2021
ADC 122 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FERREDAY
Applicant
AND: MS LAYH
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
28 SEPTEMBER2021
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.
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 the pseudonym Ferreday & Layh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
On 31 August 2021, Mr Ferreday (“the father”) filed an Application in an Appeal seeking to review a decision of the Appeal Registrar to refuse to accept for filing a Notice of Appeal which he had sought to file on 23 August 2021.
On that same date, namely 31 August 2021, the father also filed an Application in an Appeal seeking an extension of time to file a Notice of Appeal appealing against orders made by the primary Judge on 28 July 2021. That Notice of Appeal is the same Notice of Appeal which the father sought to file on 23 August 2021.
Today, the father has withdrawn the Application in an Appeal seeking an extension of time to file a Notice of Appeal, and I propose to dismiss that application. Thus, that leaves for consideration the application seeking to review a decision of the Appeal Registrar. That application is opposed by Ms Layh (“the mother”).
It needs to be said that the orders of the primary Judge made on 28 July 2021, which are the subject of the Notice of Appeal the father seeks to file, dismissed the father's application to reopen final parenting orders by applying the rule in Rice & Asplund (1979) FLC 90-725.
Following a lengthy trial the primary Judge made final parenting and property settlement orders on 24 August 2018. His Honour ordered that the mother have sole parental responsibility for the parties’ child, that the child live with the mother and spend weekly time with the father. Since then, the father has filed numerous applications and appeals in respect of those final parenting orders. None have succeeded.
The father's most recent agitation in respect of the final parenting orders, namely his Initiating Application filed on 17 March 2021, and Amended Initiating Application filed on 26 July 2021, were the applications that came before the primary Judge on 28 July 2021. The mother, in response to those applications, sought that they be dismissed by application of the rule in Rice & Asplund.
In the reasons for judgment of the primary Judge delivered on 28 July 2021, his Honour can be seen to traverse the orders sought by the father, and his affidavit filed in support. His Honour, though, considered almost all of the father's material was beyond comprehension, and struck out most of the orders sought by the father. I add that the lack of comprehension has been a characteristic of all of the appeals and applications that the father has brought since the final orders were made on 24 August 2018.
Amongst the father's material, his Honour discerned that the primary issue for the father in the application, was that the child be returned to the father's preferred primary school. His Honour found that reopening the parenting litigation for that purpose was not in the child's best interests, as there was nothing contained in the father's affidavit amounting to evidence in support of the orders sought to return the child to the father's preferred primary school. There was no merit in any event to the father's application, given the child had settled at her current primary school and was in her last year, and as at the date of judgment “…what remains of the school year is the balance of term three and then term four, when the child will then graduate ([44]). His Honour then went on to say that “[t]here is nothing to suggest that a move back to [the father’s preferred primary school] would have utility in [those] circumstances” ([48]), and allowing the father to proceed would be an abuse of process.
Although his Honour discerned that that was the primary issue in the father's application, his Honour also observed that once again, and by that I mean, as has been the case in all of his applications and appeals brought since the final orders, it was apparent that the father was using that as a guise, namely the school issue, to vent his concern as to the appropriateness of the final orders.
That was clearly not something which his Honour saw fit to allow the father to pursue, given, to repeat, the father had filed a number of applications and appeals in relation to those final orders which were all dismissed.
The father attempted to file his Notice of Appeal on 23 August 2021. The Appeal Registrar though rejected the Notice of Appeal for filing, for failing to identify any alleged errors in the primary Judge's reasons for judgment in the 23 grounds of appeal.
The Appeal Registrar also determined that a number of the orders sought were not within power of the Appellate Division. So that there is no dispute about the exercise of power by the Appeal Registrar, I set out below the email from the Appeal Registrar to the father, dated 24 August 2021, which contained that decision:
Your Notice of Appeal received on the 23 August 2021 has not been accepted for filing for the following reasons:
· Although you have listed 23 grounds of appeal, I am unable to identify in the narrative that you have provided over approximately 55 pages, what you allege to be the legal error/s that [the primary Judge] made;
· In order for the notice of appeal to be accepted, you must clearly and concisely identify what legal or factual error was made by the judge. The grounds of appeal do not require a detailed explanation as you will be accorded an opportunity to provide a summary of argument at a later time if a Notice of Appeal has been accepted. For further information see Ravinspole & Whycliffe & ICL [2015] FamCAFC 225 or Dickens & Dickens (No 4) [2019] FamCAFC 203);
· Many of the order sought are not within the power of the appellate division; and
· The orders that you are seeking to appeal must be attached to the notice of Appeal.
You should consider obtaining legal advice to assist in the preparation of a notice of Appeal that addresses the issues set out above.
In the meantime I enclose the Notice of Appeal form together with information sheet in relation to appeals by way of assistance.
If you intend to resubmit a Notice of Appeal it must be filed no later than 4:30 pm (AEST) Wednesday 25 August 2021.
All appeal documents must be submitted for filing in the Southern Regional Appeal Registry by e-mail to [email protected] only.
It is not possible for documents to be filed in appeal proceedings via the Commonwealth Portal.
It should be noted that, appropriately, the Appeal Registrar informed the father that as a result of the refusal to accept the Notice of Appeal for filing, if he intended to resubmit a Notice of Appeal, it had to be filed no later than 4:30pm on Wednesday 25 August 2021. That was appropriate because that was when the allowed 28 day period following the orders during which an appeal could be lodged expired.
The father failed to resubmit a Notice of Appeal by that time, and that of course then led to his application seeking an extension of time, which I do not need to deal with, given the father has withdrawn that application.
The application before the court today is 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 as a hearing de novo. Namely, what I have to consider is whether it is now appropriate to allow the father to file that same Notice of Appeal.
Turning then to the Notice of Appeal.
Under the heading Grounds of Appeal, there are approximately 10 pages of narrative comprising 23 so-called grounds of appeal. They are entitled as follows:
FIRST GROUND I: … ABUSE
SECOND GROUND II: …PLEA
THIRD GROUND III: …LOVE
FOURTH GROUND IV … TRUTH and EVIDENCE
FIFTH GROUND V: … PAIN
SIXTH GROUND VI: EVIDENCE of DIFFERENCE, POLES and EQUATOR
GROUND VII: … PERCEPTION
GROUND VIII: SUBJECTIVE PREFERENCE ABUSE
NINTH GROUND: IX SCHOOL REPORT
TENTH GROUND X … ‘NEW FRIENDS’
ELEVENTH GROUND XI: … ANTICIPATED and EXPECTED
TWELFTH GROUND XII … THE THREE MAIN MIS-PRECEPTS
THIRTEENTH GROUND XIII … SKEWERED under DURESS while ATTACKS on a CHILD’S PARENT are ATTACKS on the CHILD
FOURTEENTH GROUND XIV: HISTORY
FIFTEENTH GROUND XV: … IDENTITY
SIXTEENTH GROUND XVI …APPLICATIONS
SEVENTEENTH GROUND VXII … ERRORS: … and also CENSURE, SILENCE and TAILORING the ACCEPTANCE of EVIDENCE
EIGHTEENTH GROUND XVIII … OGRE of SILENCE
NINETEENTH GROUND XIX … BENEFACTOR
TWENTIETH GROUND XX … A PREVIOUS APPEAL ‘PACKAGE’ of EVENTS
TWENTY-FIRST GROUND XXI …ABUSIVE AND ACRIMONIOUS SECRECY
TWENTY SECOND GROUND XXII … COURT’S ROPE TO HANG ITSELF
TWENTY THIRD GROUND XXIII OTHER GROUNDS
(As per original)
I can categorically say that there is no basis whatsoever for the father to be able to file that Notice of Appeal. It is unintelligible, and I add to what the Appeal Registrar said in relation to it. It fails to articulate any appealable error by the trial Judge. It contains a narrative which, to repeat, is incomprehensible. It would also be futile to allow a Notice to be filed, because the minute it was filed, it would then need to be dismissed, because it does not identify appealable error by the primary Judge. There are simply no competent grounds of appeal. It is a stream of consciousness.
Thus, I propose to dismiss the application seeking to review the exercise of power by the Appeal Registrar.
This process is another 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, setting up, and arranging this court and this hearing. It is also a waste of time for my staff who are sitting here patiently listening to all this.
As I said in the reasons for judgment that I delivered on 26 March 2020 (see Ferreday & Layh [2020] FamCAFC 90), when I dismissed an application that the father had filed on 31 December 2019, seeking coincidentally, to review an exercise of power by the Appeal Registrar to refuse to accept a Notice of Appeal for filing, this has to stop.
As can be seen, it has not stopped. The father has said today on more than one occasion that he will persist. He will continue to do what he is doing, and bring matters before the court. I can tell him that he is approaching a situation where he will be declared a vexatious litigant, and he will not be able to bring applications either in the lower court or in the appellate court.
There is no application before the court for a vexatious proceedings order. The court, of course, has the power of its own motion to make such an order, but I do not propose to do that today, tempted as I am, because I am not certain that the father has been put on notice about that before. However, he is now on notice, and if he chooses to make another incomprehensible and baseless application, it may very well be that he faces an application by the mother along those lines.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 6 October 2021
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