Fierro & Fierro
[2022] FedCFamC1A 72
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fierro & Fierro [2022] FedCFamC1A 72
Appeal from: Fierro & Fierro [2022] FedCFamC1F 254 Appeal number(s): NAA 137 of 2022 File number(s): SYC 7639 of 2021 Judgment of: AUSTIN J Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Application in an Appeal – Extension of time to file Notice of Appeal – Where the applicant seeks leave to appeal out of time against an order dismissing his application for the discharge of the Independent Children’s Lawyer (“the ICL”) – Where no appeal competently lies from that order as it is merely a procedural ruling – Leave to appeal out of time refused – Application to adduce further evidence – Where no further evidence could cure the legal defect which besets the proposed appeal – Application for relief from the obligation to file a transcript – Where there is no appeal and no need for a transcript – Application dismissed – Costs – Where the ICL sought the costs of opposing the application – Where making such an order without allowing any response from the applicant would be a denial of procedural fairness – Application for costs dismissed. Legislation: Commonwealth of Australia Constitution Act 1900 (Cth) Ch III s 73
Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26
Federal Court of Australia Act 1976 (Cth) s 4
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38
Cases cited: Arndale & Kingley (No 3) [2011] FamCAFC 128
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Lim & Zong (2021) FLC 94-048; [2021] FamCAFC 165
Lloyd and Lloyd and Child Representative (2000) FLC 93-045
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 23 Date of hearing: 7 July 2022 Place: Determined on the papers The Applicant: Self-represented litigant The First Respondent: Did not participate Solicitor for the Second Respondent: Dobson Mitchell Allport Solicitor for the Independent Children's Lawyer: Tasmania Legal Aid ORDERS
NAA 137 of 2022
SYC 7639 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FIERRO
Applicant
AND: MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.Leave to bring an appeal from the order made by the Federal Circuit and Family Court of Australia (Division 1) on 22 April 2022 is refused and the Application in an Appeal filed on 16 June 2022 is dismissed.
2.The Independent Children’s Lawyer’s application for costs is 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fierro & Fierro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
The applicant in these proceedings is the applicant in the underlying parenting proceedings, commenced in October 2021 under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), which concern a child who is now 14 years of age. The applicant is the child’s adult brother. The two respondents joined to these proceedings and those below are the parents of the child and the applicant.
Former proceedings between the same parties were resolved by consent orders made only a few months beforehand on 21 May 2021, providing for the respondents to have equal shared parental responsibility for the child, for the child to live with them, and for the child to communicate with the applicant in only certain confined ways. The applicant is seeking to upset those consent orders.
On 8 March 2022, an Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s best interests. The orders expressly noted the applicant’s request that Ms E not be appointed as the ICL, but did not purport to bind the decision of Tasmania Legal Aid about who should fulfil the role. The applicant’s objection to Ms E arose out of her collegiate involvement with the ICL who was appointed in the prior proceedings completed in October 2021 (Mr D).
As it transpired, despite the applicant’s request, Ms E was still appointed as the ICL by Tasmania Legal Aid. Upon learning of her appointment, the applicant filed an application for her discharge on 27 March 2022, which application was heard and dismissed by the primary judge on 22 April 2022.
The applicant appealed from the dismissal order within time but then discontinued the appeal on 23 May 2022. Then, weeks later on 16 June 2022, the applicant filed an Application in an Appeal seeking leave to file a fresh appeal out of time against the dismissal order made on 22 April 2022.
The applicant indicated within his Application in an Appeal (in Part C) that he wants the application determined on the papers in the parties’ absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The Appeal Registrar confirmed with the applicant that was indeed so. The ICL agreed to that course, but the respondents did not reply. I therefore proceed as the applicant wishes.
In support of the application to bring the appeal out of time, the applicant relied upon:
(a)his unsworn affidavit filed on 16 June 2022;
(b)a draft Notice of Appeal setting out his proposed grounds of appeal;
(c)lengthy written submissions he filed on 20 June 2022; and
(d)more written submissions he filed on 7 July 2022 in reply to written submissions filed by the ICL on 6 July 2022.
It is evident from the content of those documents that the applicant’s grievance is, in very large measure, simply the re-statement of the arguments he advanced to the primary judge about why Ms E should be removed from the role of ICL in the underlying proceedings. The proposed appeal is not, in truth, an articulation of how the primary judge fell into legal, factual or discretionary error by deciding to dismiss his application.
The applicant’s complaints about Ms E are replete with florid allegations of her inexperience, incompetence and bias, but such complaints are seemingly based entirely upon his perception. No matter how earnestly the applicant believes in the allegations, his bare belief is not objective proof of the facts (Arndale & Kingley (No 3) [2011] FamCAFC 128 at [77]) that would justify the removal of an ICL on recognised grounds (Lloyd and Lloyd and Child Representative (2000) FLC 93-045 at 87,687).
Nevertheless, the impediment to the proposed appeal is more fundamental than the scarcity of probative objective evidence to vindicate the applicant’s complaints against Ms E and the alleged appealable error by the primary judge.
Appeals only lie from “judgments” (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) (“the FCFCA Act”).
For that purpose, “judgment” is defined as follows (s 7(1) of the FCFCA Act):
"judgment" means a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of the Family Law Act 1975 .
The definition of “judgment” in s 7(1) of the FCFCA Act now bears similarity to the definition of “judgment” found in s 4 of the Federal Court of Australia Act 1976 (Cth), both of which definitions generally align with the jurisdiction of the High Court of Australia under s 73 of the Constitution to hear appeals from “all judgments, decrees, orders and sentences”.
The High Court has stated that a “judgment” from which an appeal lies is the “operative judicial act” embodied in the court’s orders which resolve the justiciable dispute (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64). Importantly, a “judgment” does not include rulings on points of law or answers to questions of law which arise during the proceedings, when those rulings or answers are not decisive of the parties’ rights. Nor are rulings converted to “judgments” simply by expressing them in the form or language of orders (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 per Mason J at 14, Jacobs J at 18, Murphy J at 21, and Aickin J at 26).
In this instance, the primary judge merely ruled on a procedural question – whether or not Ms E could remain the appointed ICL – and did not resolve the parties’ rights in any way. The parties’ claims for relief in respect of the subject child within the cause under Pt VII of the Act in the underlying proceedings are yet to be heard and determined. The dismissal of the application to remove Ms E as the ICL is not a “judgment” from which any appeal competently lies.
The applicant engaged with this argument, submitting:
8.Finally, if we are to accept [the ICL’s] counsel’s submission that the order of 13 April 2022 is not appealable (and I do not). Then that in and of itself raises a point of principle which warrants a grant of leave it is submitted. …
9.It is submitted….the decision of 13 April 2022 determined to a finality an interlocutory proceeding as between the applicant and the respondent ICL/respondents and therefore rights of the parties were determined. … Respectfully, this appeal is distinguishable from a mere ruling of evidence where no proceeding or identifiable part of a proceeding was determined. It follows that the decision is appealable.
The submissions are rejected. The dismissal of the application to discharge the particular ICL assigned to the proceedings did not determine in any way any of the applicant’s legal rights.
Another judge exercising appellate jurisdiction previously heard and dismissed an appeal from an order dismissing an application to discharge an ICL (Lim & Zong (2021) FLC 94-048 at [2]–[4]), but this threshold issue was not raised by counsel with the judge in that appeal. As the issue was not broached, the entertainment of the appeal in that instance does not stand as binding authority for the proposition that appeals from such procedural orders are competent.
It may be that, once orders are finally pronounced under Pt VII of the Act to conclude the parties’ substantive dispute, the applicant will be satisfied and no appeal will result. Even if he is dissatisfied, in any appeal brought from those final orders it might still be open to challenge the primary judge’s interlocutory refusal to discharge Ms E, provided certain conditions are met (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 and 494–497).
Since no appeal competently lies from the dismissal order, it would be pointless to grant the applicant leave to bring his appeal out of time.
Given the necessary refusal of leave to bring the appeal out of time, the applicant’s additional applications to file further evidence and to proceed without transcript must also be dismissed. No further evidence led by the applicant could cure the legal defect which besets his proposed appeal and, since there will be no appeal, there is no need for transcript.
The ICL sought costs of $665.84 in having to prepare submissions to meet and oppose the application. In ordinary circumstances, it is likely the applicant would be ordered to pay such modest costs but, since the ICL consented to the application being determined on the papers in chambers, the making of such an order without allowing any response from the applicant would deprive him of procedural fairness. To afford him such procedural fairness would require more written submissions to be filed or attendance at a court event, which would simply increase costs. The costs application is therefore dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 8 July 2022
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