LAYH & FERREDAY
[2019] FamCAFC 123
•19 July 2019
FAMILY COURT OF AUSTRALIA
| LAYH & FERREDAY | [2019] FamCAFC 123 |
| FAMILY LAW – APPLICATION IN AN APPEAL – DISMISS NOTICE OF APPEAL – Where the mother seeks dismissal of the father’s appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where it is apparent from the grounds of appeal that the appeal has no reasonable prospects of success – Where the appeal lacks utility – Where the matters raised in the grounds of appeal and the orders sought in the appeal are the same matters that the father sought to raise in a previous appeal which was dismissed – Appeal dismissed. FAMILY LAW – COSTS – Where the mother and the Independent Children’s Lawyer seek costs – Where the mother has been wholly successful in having the appeal dismissed – Where this provides a circumstance which justifies a costs order being made in favour of the mother – Where it was not necessary for the Independent Children’s Lawyer to attend the hearing and costs should not be ordered – Costs ordered in the sum sought by the mother – Oral application for costs by the Independent Children’s Lawyer dismissed. |
| Family Law Act 1975 (Cth) s 96AA |
| APPLICANT: | Ms Layh |
| RESPONDENT: | Mr Ferreday |
| FILE NUMBER: | ADC | 122 | of | 2015 |
| APPEAL NUMBER: | SOA | 25 | of | 2019 |
| DATE DELIVERED: | 19 July 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | 19 July 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT ORDER DATE: | 22 March 2019 |
| LOWER COURT MNC: | [2019] FamCA 285 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harris |
| SOLICITOR FOR THE APPLICANT: | E Centre |
| THE RESPONDENT: | In Person |
Orders
The Notice of Appeal filed on 18 April 2019 be dismissed.
The father pay the mother’s costs of and incidental to the Amended Application in an Appeal filed on 25 June 2019 fixed in the sum of NINE HUNDRED AND FORTY-ONE DOLLARS [$941].
The oral application for costs made by the Independent Children’s Lawyer be dismissed.
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 Layh & Ferreday 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 25 of 2019
File Number: ADC 122 of 2015
| Ms Layh |
Applicant
And
| Mr Ferreday |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Strickland J
On 25 June 2019 Ms Layh (“the mother”) filed an Amended Application in an Appeal seeking an order that the Notice of Appeal filed on 18 April 2019 by Mr Ferreday (“the father”) be dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth) (“the Act”).
In his Notice of Appeal the father appeals against orders made by Berman J on 22 March 2019, in his absence. The father failed to attend the hearing, but given the circumstances of the case and its history, his Honour determined to proceed to hear his application.
By those orders of 22 March 2019, his Honour dismissed the father’s Application in a Case filed on 11 February 2019, and listed all outstanding costs applications for hearing at 9:15am on 11 April 2019.
The application filed on 11 February 2019 sought a number of orders, but primarily, a review of a Registrar’s decision to reject the father’s application for a further stay of the final parenting and property settlement orders made by his Honour on 24 August 2018.
I observe that his Honour found that the other orders sought were at best difficult to understand, and at worst, incomprehensible (see [6] and [7] of his Honour’s reasons for judgment). However, at least one order sought seemed to relate to the issue of a stay, and is best described as providing some sort of a basis for a stay. Other orders sought variations to the final property settlement orders made by his Honour, which of course could not be achieved via such an application, if at all.
In any event, to repeat, the primary issue was that of a further stay. In that regard his Honour emphasised that previously, on 11 October 2018, the father had sought a stay of the orders of 24 August 2018, and that application was dismissed by his Honour on 25 October 2018.
The context of the applications for a stay was the filing of a Notice of Appeal by the father on 20 September 2018, against the orders of 24 August 2018. That appeal was listed for hearing on 25 March 2018, and the application filed on 11 February 2019, was listed for hearing on 22 March 2019, namely the last sitting day before the hearing of the appeal.
In his reasons for judgment his Honour concluded as follows:
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.
In the father’s Notice of Appeal the grounds of appeal are as follows:
1. GROUND ONE:
The orders are in breach of Sect 60A-D of the Act.
in Damage of [X (“the child”)]
(a) This includes cancelling her therapy without any qualified DIAGNOSIS after she has been taken to the police station to LIE and say her Father is going to KILL her!
(b) This includes damage to the support for her Mental Healih at School in breach also of her priority of support for her Education by both of her Parents when the School Injunction has NOT been ordered on any substantive basis of behaviour and ample evidence to the contrary.
2. GROUND TWO:
The orders are in error of Premise in that I am positioned as a Protagonist miscreant when I am a SUPPLICANT for my Daughter , [the child] who is being Damaged by the above breach and also by Duress in pursuit of financial motives of her Mother.
(a) This is also acting on a wrong principle.
(b) Issues of the Marriage separation, pursuit of a paedophile, and Property are also irrelevant extraneaous matters.
(c) Ground Three emphaisizes that there whole of the Case has occurred in mistaken facts
(d) Damage to [the child] was overlooked by the Court.
(e) The orders arise from actions to Protect the Mother from accumulations of Forensic data at the doctors and at Therapy when the weight of judgement requires this priority to be assigned to protection of [the child].
(f) All of the above are self-evident in the intrinsic pattern of events in the Case.
3. GROUND THREE:
There is an error of fact in that the orders can only be sustained if 8 witnesses have committed PERJURY and so then ALL decisions consequent are in error including those of the current orders..
4. GROUND FOUR
There has been a failure of discretion for Disability for a [recipient of a … pension] doing ONLY the best possible things for assistance of his Daughter, [the child] in plight.
This is ONLY in Motive of Care and not of Motive other than this in assistance of myself.
(Errors and omissions as per original)
And, the orders sought in the appeal are as follows:
1. That the Father… in consultation with the Mother… have the legal responsibility until majority for legal and major life decisions in Care of [the child] … and this to include monitoring for safe adjustment of her sexual, physical and Emotional safety, well-being and secure Development, … when any forms of Emotional Duress or Abuse cannot reasonably be ruled out from existing in relation to her.
1.1 This responsibility is to be exercised reasonably and responsibly for the benefit of [the child] until age 18 years or as reviewed via Court with monitoring in particular for order 1.2 below.
1.2 That [the child] as a matter of Protocol is not to spend time alone nor under the authority of her brother [Mr Y] as a matter of precautionary CARE for [the child] and this is not so ordered in prosecution of any persons.
1.3 The Father is authorized to seek, identify and organize application, in accord with protective measures, a responsible delegation of the legal monitoring responsibilityas in order #1 for conjoint SHARED Care to be undertaken with [the mother] and this in the main incorporating monitoring for Abuse. This delegation would then be subject of an approval of the person, persons or Agency so identified and may include if it may so approve, the relevant Guardianship Board.
1.4 That any default of Care or inability of one of her Parents to provide care, including during allocated times and places then [the child] is to be in the Care of the other Parent … and this with condition that monitoring for her safety in accord with the Principles identified in Orders above of 1.to 1.3 inclusive apply.
2. That PARENTING is ordered to be by SHARED CARE including 3.1 below in that [the child] LIVES WITH her Father at her home at [L Town] attending the local school unless otherwise agreed with her Parents and that this is not by Sole Parenting in that neither Parent is to be unreasonably impeded by the other Parent in his or her Parental Responsibility for this SHARED CARE and support of [the child] at any time and including during times organized for [the child] to have experience with her other Parent.
2.1 This responsibility is to be conducted reasonably in negotiation and consultation with the other Parent in accord with [the child’s] needs.
2.2 If [the child] is reasonably not in such need … and time has been scheduled for her to have experience of her Parental Relationship with a Parent … then this need is to be facilitated and respected by the other Parent.
2.3 If [the child] and either of her Parents identify a reason to connect for a ten minute period during any period extending over three days then this is to be facilitated by the other Parent in negotiation for a time and place in that day so identified.
2.4 This SHARED CARE responsibility identified in Order 2 includes neither Parent impeding organized consultations with professional and medical services for Psychological, Mental, Emotional and Physical Health nor events of reasonable schooling, development nor sporting and cultural activities for [the child’s] needs.
3. That the Orders of 24th August 2018 under Review be dismissed in favour of any relevant current sought orders in this Appeal Application.
3.1 That [the child] live with her Father in her own beneficially held Home at [L Town] or where in the vicinity of [C Town] he may reside and the schedule of time [the child] spends with each of her Parents returns to that prior to 24th August 2018 … with such adjustments as may be mutually agreed over time in accord with [the child’s] needs.
3.2 This is to include that [the child] has open, free and reasonable access to both of her Paents including her other Parent when there is reasonable need on her part and this in particular for Sporting and Cultural activities.
3.3 This also includes conjoint, open and alternative access to both or either parent for medical or other need including dental, psychology and other such services with these continuing conjointly as has currently normally been the case.
3.4 The schedule of times for [the child] with each of her Parents may be adjusted by agreement to what may benefit [the child], yet returns initially to Monday with her Father first day of the fortnight … then Tuesday and Wednesday with her Mother for the next two days … and these three days … (i.e. Monday through to Wednesday) alternating second week of the fortnight.
The rest of each week is in fixed pattern weekly beginning each Thursday [the child’s] time is with [the mother] … and then each day alternating until Sunday.
This second part of the week completes what is a regular weekly pattern to complete each fortnight in a 50% allocation of time with each Parent.
3.5 The change-overs occur at 10 am in the main at school and the two face to face changeovers each week between the Parents continue as they arrange or at the local Coles carpark.
3.6 Saturday is allocated (as previously) to be [the child’s] time with her Mother excepting in that when [the child] is engaged in sporting and cultural activities … or for three hours to celebrate her own Birthday on a Saturday with extended Family, .. then she has open to both Parents, free conjoint access and support.
At other times [the child] has Saturday with her Mother and the Father is to have respect for [the child] to develop this Maternal relationship in time alone with her Mother as may be reasonable.
4. All School activities may be openly inclusive of both Parents as is normal and open for parents to attend.
5. Christmas and [religious festival] are respected with a 30 hour allocation of time to the Parent with whom [the child] celebrates that day.
5.1 This is to begin at 6pm on the eve of that celebration and then return to the normal scheduled pattern for changeovers the day following the celebration.
5.2 Other special days such as close Family Birthdays, [the child’s] Birthday,Mother’s Day and Father’s Day are to be organized to provide reasonable time for [the child] to celebrate that day with each of her Parents respectively including the identied need for [the child] to celebrate with extended family members on a Saturday near her Birthday for three hours.
6. That each year there be two periods of 4 days with each Parent for purpose of [water] Trips or visits to relatives interstate with a safety Protocol agreed by the Father with someone involved with the visit he may delegate and for these periods to be adjusted flexibly with the time made up through reasonably negotiated variations of scheduled times.
7. That the Father have responsibility in consultation with the Mother for organizing and safety for overseas travel for [the child].
7.1 This is normally to be for up to one trip of three weeks per year.
7.2 The Father or his delegate is to retain responsibility for [the child’s] passports, Child Protection and safety at all times and parts of the itinerary when [the child] may be travelling overseas.
If the father is not present then Care of [the child] is shared with her Mother and someone of the Father’s delegation.
7.3 This travel is to include visits for [the child] with her relatives in [Country C] as the main purpose and benefit of her travel.
7.4 Travel for [the child] with her Father may be with open invitation for [the child’s] Mother to travel together or alone as she may decide and accept to the same destinations in order to facilitate [the child] to have time with her Mother and relatives while overseas.
7.5 Telephone and other media contact for [the child] with her Parents is to be unimpeded and daily at all times whether overseas or in Australia.
8. That all relevant matters of the orders of 24th August 2018, including monetary and Property, as are determined to have resulted from SUPPOSITION or ERROR or without applying reasonable discretion … are vacated for appropriate re-dress, compensation, ameliorations, and re-instatements as may be in accord with need for repair, protection or well-being going forward for [the child] or her Father as may be appropriately redressed … unless acceded otherwise by this applicant … or made subject of a proper process for determination.
9. Any determination of a split of the Father’s GOVERNMENT PENSION, be subject to re-ified process and reasonable compensation occur in default of Judgement.
9.1 In particular, any RIGHT of APPEAL that might have been vacated through failure of utility considerations prior to determination be reasonably compensated as appropriate or be subject of proper address and determination.
9.2 That such monies or property held in the hands of others which might be considered to be allocated to [the mother] is to NOT be accessed in favour of such monis being accesed via a split of [the father’s] pension.
9.3 That interest and costs not be allocated to be paid by [the father] and [the child].
(Errors and omissions as per original)
The mother seeks dismissal of the appeal pursuant to s 96AA of the Act which provides as follows:
APPEAL MAY BE DISMISSED IF NO REASONABLE PROSPECT OF SUCCESS
96AA(1) If:
(a)an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
…
The submissions of the mother set out in the affidavit filed on 21 June 2019 in support of her application are as follows:
6.1.The Notice of Appeal does not contain any grounds which intelligibly articulate any appealable error made by His Honour.
6.2.The grounds appear to raise matters which have been raised in a previous appeal filed by the [father] which appeal has now been dismissed by the Full Court on the 13 June 2019.
6.3.The [father’s] Notice of Appeal has no reasonable prospects of success.
It is readily apparent from the grounds of appeal that the appeal has no reasonable prospects of success. The grounds bear no relationship to the application that was before his Honour, or to his Honour’s reasons for dismissing it.
As submitted by the mother, the matters raised in the grounds of appeal, and for that matter in the orders sought, are the same issues that the father sought to raise in his appeal against the orders of 24 August 2018, and which appeal was dismissed on 13 June 2019.
The father filed a Response to the mother’s application on 17 July 2019, seeking an order that that application be dismissed. He also seeks an order that is incomprehensible, both generally and in the context of the matter before the court, namely “[t]hat an an [sic] amount of $30,000 be identified at this stage as the amount in Appeal SOA 25 that is consequent upon the sought split of the Father’s pension entitlement as means to preserve [the H Pty Ltd] Trust”. We propose to ignore that application.
That Response is supported by an affidavit, but as with the grounds of appeal and the orders sought, it is not only difficult to understand, but to the extent it can be, it bears no relationship to the application of the mother that he seeks be dismissed.
For example, paragraph 1 of that affidavit reads as follows:
…
This is an application to dismiss a matter of SOA 25 as serious as a BREACH of Sect 60 of the Act pertaining to matters processed through the Court on 22 March 2019 and the following matters need to be considered in reference to this:
1. My affidavit of 15 July 2019 is not a repeat of matters in the Notice of Appeal … It is a set of further reasons in improved in intelligibility of it being URGENT that SOA25 not be dismissed. It is my task to provide EVIDENCE truly in statement of facts. … Itg is for others to do as they may with that EVIDENCE once presented.
It is also an Evidential Fact that it might be is prejudicial of a decision to pre-condition too greatly the EVIDENCE prior to it being presented.
(Errors and omissions as per original)
The balance of the affidavit is no better understood and provides no basis to dismiss the mother’s application.
In addition to that application and affidavit, the father filed written submissions on 16 July 2019, but again, with all due respect to the father, they also bear no relationship to the application that is before this Court today.
Next, and for completeness, I observe that it is entirely unclear on what basis the father appeals against the order listing all outstanding costs applications for hearing. In any event, that is not a decree that can be the subject of an appeal.
I also add at this point that counsel for the Independent Children’s Lawyer (“ICL”) appeared today and provided this Court with written submissions. In short though, the ICL supports the application of the mother that the appeal be dismissed.
Finally, and fatal to the appeal, regardless of any prospect of success or otherwise of the grounds of appeal, the appeal now lacks utility. The father’s application for a stay of the orders of 24 August 2018 was able to be brought as a result of his appeal against those orders. However, as referred to above, that appeal has been heard, and it has been dismissed. Thus, there are no longer proceedings on foot which can be relied on by the father to provide a basis for a stay of those orders, and to allow the appeal would be of no utility whatsoever.
In the Amended Application in an Appeal filed by the mother, she seeks an order that the father pay her costs on an indemnity basis, if the appeal is dismissed. However, we are told today by counsel for the mother that costs on an indemnity basis are not sought, and instead, in the event of the appeal being dismissed, an amount of $941 is sought, and we are told that that is calculated on a party/party basis.
Counsel for the ICL also sought an order for costs in the sum of $500 in the event that the appeal was dismissed.
In relation to the costs sought by the mother, I consider that there are circumstances which justify an order for costs being made, namely, as I will shortly propose that the appeal be dismissed, the father will have been entirely unsuccessful, or alternatively, the mother will have been wholly successful.
In relation to the costs sought by counsel for the ICL, I am of the view that no costs should be ordered. As I said during the hearing, although the ICL was a party to the order which is the subject of the appeal, and was named in the Notice of Appeal, there was no need for the ICL to appear today, and thus I would not be disposed to order costs in favour of the ICL.
For the reasons just expressed I would make the following orders:
(1) The Notice of Appeal filed on 18 April 2019 be dismissed.
(2)The father pay the mother’s costs of and incidental to the Amended Application in an Appeal filed on 25 June 2019 fixed in the sum of NINE HUNDRED AND FORTY-ONE DOLLARS [$941].
(3)The oral application for costs made by the Independent Children’s Lawyer be dismissed.
Ainslie-Wallace J
I agree with the orders proposed by the presiding judge and the reasons he gives for making those orders.
Aldridge J
I also agree.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace and Aldridge JJ) delivered on 19 July 2019.
Legal Associate:
Date: 25 July 2019
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