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
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.
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- AGLC
- Fierro & Fierro [2022] FedCFamC1A 72
- Case
- [2022] FedCFamC1A 72
- Decision Date
CaseChat Overview and Summary
The matter of Fierro & Fierro involved an appeal against a decision made by a Family Court of Australia judge regarding the appointment of an Independent Children’s Lawyer (ICL). The applicant sought to challenge the decision to dismiss their application to remove the ICL from the proceedings concerning their child. The appeal was heard by the Full Court of the Family Court of Australia.
The central legal issue before the court was whether the order dismissing the applicant’s application to remove the ICL constituted a "judgment" from which an appeal could be lodged under the Family Law Act 1975. The court had to determine if the order was an operative judicial act that conclusively resolved the parties’ rights or if it was merely a procedural ruling that did not determine any substantive rights.
The court found that the order was not a "judgment" as it did not resolve the substantive rights of the parties. Instead, it was a procedural ruling on whether the ICL could remain in their appointed role. The court noted that the High Court has defined a "judgment" as an operative judicial act that resolves the parties' rights, and this ruling did not meet that criterion. The court further clarified that merely expressing a ruling in the form or language of an order does not convert it into a "judgment" from which an appeal can be made.
As a result, the court dismissed the appeal, holding that the order was not appealable because it did not determine any rights of the parties. The dismissal of the application to remove the ICL was not a conclusive determination of the parties' rights, as those rights were yet to be decided in the underlying proceedings.
The central legal issue before the court was whether the order dismissing the applicant’s application to remove the ICL constituted a "judgment" from which an appeal could be lodged under the Family Law Act 1975. The court had to determine if the order was an operative judicial act that conclusively resolved the parties’ rights or if it was merely a procedural ruling that did not determine any substantive rights.
The court found that the order was not a "judgment" as it did not resolve the substantive rights of the parties. Instead, it was a procedural ruling on whether the ICL could remain in their appointed role. The court noted that the High Court has defined a "judgment" as an operative judicial act that resolves the parties' rights, and this ruling did not meet that criterion. The court further clarified that merely expressing a ruling in the form or language of an order does not convert it into a "judgment" from which an appeal can be made.
As a result, the court dismissed the appeal, holding that the order was not appealable because it did not determine any rights of the parties. The dismissal of the application to remove the ICL was not a conclusive determination of the parties' rights, as those rights were yet to be decided in the underlying proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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