Fierro & Fierro (No 2)

[2022] FedCFamC1A 114

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Fierro & Fierro (No 2) [2022] FedCFamC1A 114

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:

25 July 2022

Catchwords:

FAMILY LAW – APPEAL – Application in an appeal – Review of decision – Where the Appeal Registrar rejected an Application in an Appeal for filing – Where the applicant seeks that an order made in the appellate jurisdiction be varied or set aside – Where the rules upon which the applicant relies to challenge the decision are inapposite – Where the order made on 8 July 2022 refused the applicant leave to appeal out of time from an interlocutory order – Where neither the order nor reasons require correction – Application in an Appeal dismissed.

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 55

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.12, 10.13, 10.14

Cases cited:

Fierro & Fierro [2022] FedCFamC1A 72

Number of paragraphs:

9

Date of hearing:

25 July 2022

Place:

Newcastle (via video link)

The Applicant:

Self-represented litigant

The First Respondent:

Self-represented litigant

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 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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:	25 JULY 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 20 July 2022 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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 8 July 2022, the applicant’s application for leave to appeal out of time from an order made on 22 April 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 1) was dismissed (Fierro & Fierro [2022] FedCFamC1A 72).

2. The applicant is dissatisfied with the decision. On 13 July 2022, he tried to file an Application in an Appeal (supported by an affidavit sworn and submissions prepared by him) seeking that the order made on 8 July 2022 be set aside or varied pursuant to rr 10.12 or 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).

3. In the accompanying written submissions, however, the applicant reveals the real nature of his claim for relief to be this:

   The applicant seeks an order that the order of 8 July 2022 is set aside and the matter is listed for hearing by the Full Court to determine the jurisdictional issue.

4. The Appeal Registrar refused to accept the documents for filing. In a following chain of emails, the applicant asserted his broader reliance upon rr 10.12, 10.13(1)(c), 10.13(1)(h) and 10.14(a) of the Rules to set aside the order made on 8 July 2022, but he still apparently harbours an expectation that the Full Court will correct the error of which he complains.

5. The Appeal Registrar held fast, confirming on 15 July 2022 that the Application in an Appeal would not be accepted for filing. That prompted the applicant to file another Application in an Appeal on 20 July 2022 seeking review of the Appeal Registrar’s decision, which review application was listed for hearing today (25 July 2022).

6. The review entails a de novo decision about whether to accept and file the first Application in an Appeal, seeking to set aside or vary the decision made on 8 July 2022.

7. Upon review, the first Application in an Appeal should be rejected and not accepted for filing, as it is impossible to grant the relief envisaged by the applicant. That means the second Application in an Appeal must be dismissed.

8. The rules upon which the applicant expressly relies to challenge the decision made on 8 July 2022 are inapposite. The order terminated the applicant’s attempt to launch an appeal from an interlocutory decision made by the primary judge in the proceedings below and neither the order made on 8 July 2022 nor the reasons published to explain it require correction, either by resort to the slip rule or otherwise. Rules 10.12, 10.13(1)(c), 10.13(1)(h) and 10.14(a) need not and should not be deployed.

9. The decision on 8 July 2022 was made in the exercise of appellate jurisdiction, albeit by a single judge rather than the Full Court (s 32(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)). While the applicant disagrees with the decision to refuse him leave to appeal, contrary to his anticipation, there is no recourse to the Full Court to contest that decision because appellate jurisdiction is now spent. Nor is there any recourse to the High Court of Australia for special leave to appeal from the judgment of 8 July 2022, as it was a decision to refuse an application for an extension of time within which to institute an appeal from the order made on 22 April 2022 (ss 32(2)(a) and 55(3)(a) of the FCFCA Act).

I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       25 July 2022