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:

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).
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…

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 Fierro & Fierro (No 2)

Details

AGLC: Fierro & Fierro (No 2) [2022] FedCFamC1A 114
Case: [2022] FedCFamC1A 114
Decision Date

CaseChat Overview and Summary

The appeal in the case of Fierro & Fierro (No 2) involved Mr Fierro, who was self-represented, as the applicant, and Mr A Fierro as the first respondent, with Ms B Fierro as the second respondent. The appeal was against an interlocutory order made by a judge of the Federal Circuit and Family Court of Australia (Division 1), which was subsequently dismissed on 8 July 2022. The applicant was dissatisfied with this dismissal and attempted to file an Application in an Appeal seeking to set aside or vary the order, but the Appeal Registrar refused to accept the documents for filing. This led to a subsequent Application in an Appeal seeking review of the Appeal Registrar's decision, which was listed for hearing on 25 July 2022.

The legal issues before the court were whether the second Application in an Appeal should be accepted for filing and, if so, whether the order made on 8 July 2022 should be set aside or varied. The applicant sought relief under various rules of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). However, the court found that the applicant's reliance on these rules to challenge the decision was inapposite. The court held that the order made on 8 July 2022 was made in the exercise of appellate jurisdiction and terminated the applicant's attempt to launch an appeal from the interlocutory decision made by the primary judge. The court also found that neither the order made on 8 July 2022 nor the reasons published to explain it required correction.

The court dismissed the second Application in an Appeal, holding that it was impossible to grant the relief envisaged by the applicant. The court found that the applicant's expectations that the Full Court would correct the error of which he complained were unfounded. The court held that the decision made on 8 July 2022 was made in the exercise of appellate jurisdiction and there was no recourse to the Full Court or the High Court of Australia to contest that decision. The court also found that there was no 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.

The court dismissed the Application in an Appeal filed on 20 July 2022, and this order is subject to review to remedy minor typographical or grammatical errors or to record a variation to the order. The judgment has been approved for publication under the pseudonym Fierro & Fierro (No 2) pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Orders