Ferreday & Layh - [2021] FedCFamC1A 29

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 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

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] FedCFamC1A 29
Decision Date: 28 September 2021

CaseChat Overview and Summary

In the matter of Ferreday & Layh, the Federal Circuit and Family Court of Australia heard an application by Mr Ferreday to appeal a decision made in ADC 122 of 2015. The application was for an extension of time to file a Notice of Appeal and a review of the Appeal Registrar’s decision to refuse to file the Notice of Appeal. The Respondent, Ms Layh, opposed the application.

The court had to determine whether Mr Ferreday had a basis for appealing the original decision and whether the Appeal Registrar’s decision to refuse to file the Notice of Appeal was correct. The court also considered whether the application itself was frivolous and vexatious. The court examined the grounds of the appeal and the reasons why the application was made late.

The court found that there was no basis for Mr Ferreday to appeal the original decision, and if the Notice of Appeal had been filed, it would have been dismissed for failing to identify any appealable error by the trial Judge. The court found that the application was incomprehensible and baseless, and warned Mr Ferreday that if he continued to make frivolous applications, he may face an application for a vexatious proceedings order. The court dismissed the application in its entirety.

The court ordered that the application for an extension of time to file a Notice of Appeal and the application to review the exercise of power of the Appeal Registrar be dismissed. The form of the order is subject to review and may be varied in the Court’s records.

Orders

Orders of the court

SOA 56 of 2021

ADC 122 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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SOA 56 of 2021 ADC 122 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR FERREDAY Applicant
AND:	MS LAYH Respondent

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

ORDER MADE BY:	STRICKLAND J
DATE OF ORDER:	28 SEPTEMBER2021