Fierro & Fierro (No 2)
[2022] FedCFamC1F 344
•6 May 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fierro & Fierro (No 2) [2022] FedCFamC1F 344
File number(s): SYC 7639 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 6 May 2022 Catchwords: FAMILY LAW – PARENTING – Review of a registrar’s decision – Where the applicant contends no reasons were given for the registrar’s refusal to grant service of letter for evidence abroad – Incorrect procedure – Application wholly misconceived – Application dismissed – Costs ordered in fixed sum. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.49, 6.26, 6.27, 6.28, 12.17
Family Law Act 1975 (Cth) s 117
Family Law Regulations 1984 (Cth) Pt IIAB, regs 21AF, 21AC
Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
Cases cited: Beach Petroleum NL v Johnson (1995) 57 FCR 119; [1995] FCA 350
Bondelmonte and Ors & Bondelmonte (2017) 57 Fam LR 567; [2017] FamCA 924
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158
Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23
Stoian & Fiening (Costs) [2014] FamCA 944
Wrensted & Eades (2016) FLC 93-697; [2014] FamCAFC 46
Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 6 May 2022 Place: Sydney (via videolink) The Applicant: Self-represented litigant The First Respondent: Self-represented litigant Counsel for the Second Respondent: Mr Trezise Solicitor for the Second Respondent: Dobson Mitchell Allport Counsel for the Independent Children's Lawyer: Ms Watson Solicitor for the Independent Children's Lawyer: Legal Aid Commission of Tasmania ORDERS
SYC 7639 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIERRO
Applicant
AND: MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
6 MAY 2022
THE COURT ORDERS THAT:
1.The application for review filed 1 April 2022 is dismissed.
2.Within 28 days of the date of these orders, the applicant pay costs of the second respondent in the sum of $3,500.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fierro & Fierro is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
In this matter, the applicant has filed an application for review, dated 1 April 2022, in respect to a decision of a judicial registrar, dated 25 March 2022. The applicant has indicated that he does not seek a review of the entirety of the orders, but rather, “requests letter for evidence abroad pursuant to r 2.49 FCAFCOA 2021, refused with no reasons given – refusal to provide reasons”.[1] It is noted that the reference to ‘FCAFCOA 2021’ refers to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Family Law Rules 2021”).
[1] Application for Review filed 27 March 2022.
The basis of that application is misconceived. An application for review of a registrar’s decision does not require the applicant for review to establish error on the part of the registrar. An application for review of a registrar’s decision is dealt with on review as a hearing de novo. That is, the merits of the application are to be considered afresh.
It appears the relevant order that is the subject of the review application is Order 5 of the orders made by the judicial registrar, which reads: “the Applicant’s request for service abroad of judicial documents submitted to the Court is refused”. In that context, it is noted that r 2.49 of the Family Law Rules 2021 is as follows:
2.49 Serving documents in all other countries
(1)A person may serve a document on a person in a country other than Australia or New Zealand:
(a)if the country is a party to the Hague Service Convention—in accordance with Part IIAB of the Family Law Regulations; or
(b)if the country is a party to another convention, that is in force for Australia, about legal proceedings in civil and commercial matters—in accordance with Part IIAC of the Family Law Regulations.
(2) A person may serve a document on a person in a non‑convention country:
(a) in accordance with the law of the non‑convention country; or
(b)if the non‑convention country permits service of judicial documents through the diplomatic channel—through the diplomatic channel.
(3)A person seeking to serve a document in a non‑convention country through the diplomatic channel must:
(a)request the Registry Manager, in writing, to arrange service of the document under this Part; and
(b)lodge 2 copies of each document to be served, translated, if necessary, into an official language of that country.
(4)If the Registry Manager receives a request under subrule (3), the Registry Manager must:
(a) seal the documents to be served; and
(b) send to the Secretary of the Department of Foreign Affairs and Trade:
(i) the sealed documents; and
(ii)a written request that the documents be sent to the government of the non‑convention country for service.
(5) If:
(a)a document is sent to the Secretary of the Attorney‑General’s Department for service on a person in a non‑convention country; and
(b)an official certificate or declaration by the government or court of the country, stating that the document has been personally served, or served in another way under the law of the country, is sent to the court;
the certificate or declaration is proof of service of the document and, when filed, is a record of the service and has effect as if it were an affidavit of service.
Rule 2.49 relevantly provides for serving documents in countries other than Australia or New Zealand who are a party to the Hague Service Convention, and reference is made to Pt IIAB of the Family Law Regulations 1984 (Cth) (“the Regulations”).
For the purpose of this decision, I will assume that Country G, which is the country where the courts upon which the applicant wishes to serve documents are located, is a party to the Hague Service Convention. It is apparent from reading r 2.49 that it refers to service of a document and, as noted, reference is made to Pt IIAB of the Regulations, which contains reg 21AF. That provision relevantly provides:
Application for request for service abroad
(1)A person may apply to the relevant Registrar, in the relevant Registrar’s capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document.
(2)The application must be accompanied by 3 copies of each of the following documents:
(a) draft request for service abroad, which must be in accordance with Part 1 of Form 1A in Schedule 1;
(b) the document to be served;
(c) a summary of the document to be served, which must be in accordance with Form 1B in Schedule 1;
(d) if, under Article 5 of the Hague Service Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, an official language of that country, a translation into that language or 1 of the official languages of both the document to be served and the summary of the document to be served.
(3)The application must contain a written undertaking to the court, signed by the legal practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no legal practitioner on the record for the applicant in the proceedings, by the applicant:
(a) to be personally liable for all costs that are incurred:
(i)by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Convention country in which the documents are to be served; or
(ii) by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served; and
(b) to pay the amount of those costs to the relevant Registrar within 28 days after receipt from the relevant Registrar of a notice specifying the amount of those costs under subregulation 21AH(3); and
(c) to give such security for those costs as the relevant Registrar may require.
(4)The draft request for service abroad:
(a) must be completed (except for signature) by the applicant; and
(b) must state whether, if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected, the applicant wants service to be attempted after the expiry of that time; and
(c) must be addressed to the Central Authority, or to an additional authority, for the Convention country in which the person is to be served; and
(d) may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority.
(5)Any translation required under paragraph (2)(d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating:
(a) that the translation is an accurate translation of the document to be served; and
(b) the translator’s full name and address and his or her qualifications for making the translation.
It is apparent from that regulation that the facility given to a potential applicant for an order is the ability for a person to apply to a relevant registrar, in their capacity as a forwarding authority, for a request for service of a local judicial document in a Convention country. A local judicial document is defined in reg 21AC as meaning “a judicial document that relates to civil proceedings in the court.”
The relevant document that the applicant relies upon has been marked as Exhibit A in these proceedings. That document is entitled ‘Model for Letters of Request recommended for use in applying the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters’. It is apparent on the face of that document that it is a model letter. It is unsigned and does not have a signature nor a seal of the requesting authority. It is, therefore, not a local judicial document.
It appears, with respect, that the applicant has misconceived the appropriate procedure. Other than in respect to documents held by a court, including a court of another country, it is usual for a party to apply to the Court for the issuing of a subpoena, pursuant to r 6.26 of the Family Law Rules 2021. Relevantly, r 6.27(1) provides that a self-represented party must not request the issue of a subpoena without the permission of the Court. However, it must be noted that r 6.28(1) provides that the court must not issue a subpoena requiring the production of a document or thing in the possession of the Court or another court.
Specifically, 6.28(2) provides:
(2) A party who seeks production of a document or thing in the possession of another court must give to the Registry Manager a written notice setting out:
(a)the name and address of the court having possession of the document; and
(b)a description of the document to be produced; and
(c)the date when the document is to be produced; and
(d)the reason for seeking production.
Firstly, if it is contended that the document marked Exhibit A is such a request, it is noted that that document is, in any event, deficient in that it does not specify the date when the document is to be produced. However, more relevantly, Exhibit A is clearly a document that relates to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Evidence Convention”), rather than the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”), to which r 2.49 and reg 21AC relate. In other words, the applicant has misconceived the appropriate procedure to be followed insofar as he seeks the production of documents from courts in Country G.
The relevant procedure to follow is that which is set out in r 6.28, not r 2.49 to which the applicant refers. His application is therefore misconceived and must be dismissed. Moreover, even if the request to the registry manager had been made in accordance with the correct procedure as set out in r 6.28, it is apparent that the parties were entitled to be notified of that request and to have an opportunity, as a matter of procedural fairness, to address the Court as to whether or not the request should be granted, and/or whether the documents, or part thereof, should be made available for inspection by the applicant should the documents be so requested. In that respect, I refer to the decision of Watts J in Bondelmonte and Ors & Bondelmonte (2017) 57 Fam LR 567 (“Bondelmonte”) at [27]:
…there is an argument in relation to the procedural fairness of ordering that the Registrar of this court make a request of the Registrar of the Federal Court without all parties to that litigation being aware that that request is being made and without them having an opportunity to argue that either the request should not be made or that the documents or part of the documents should not be made available for inspection.
In summary, even if it is the case that Exhibit A could be construed as a request to the registry manager pursuant to r 6.28 which, for the reasons which I have previously set out I am not satisfied is the case, it is apparent that the other parties to these proceedings have not been afforded procedural fairness in accordance with Bondelmonte.
For all of the above reasons, including on the basis that the application is wholly misconceived, I dismiss the application for review filed by the applicant on 27 March 2022.
COSTS
In this matter, the applicant has been wholly unsuccessful. The legal principles relating to a costs order, as set out in s 117 of the Family Law Act 1975 (Cth) (“the Act”), state that an applicant for costs must establish the circumstances justifying an order for costs. In this case the applicant, in fairness, concedes that an order for costs on a party/party basis is appropriate. Importantly, authorities confirm that there is nothing to prevent any factor being the sole foundation for an order for costs, and I refer to Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41].
It is also clear that costs can be awarded in parenting proceedings equally as they can in property proceedings, and in that respect I refer to Wrensted & Eades (2016) FLC 93-697 at [103]. In my view, the fact that the applicant has been wholly unsuccessful is sufficient to justify an order for costs, in circumstances where there has been no reference to any other factors mitigating against such an order being made. The costs notice of the second respondent filed 6 May 2022 sets out details of costs in respect to today’s proceedings, totalling $3,500. Rule 12.17 of the Family Law Rules 2021 provide for methods of calculating costs, including the Court fixing upon a specific amount for costs.
The relevant principles for determining whether the Court should fix upon a certain amount for costs are set out in a decision by Kent J in Stoian & Fiening (Costs) [2014] FamCA 944 (“Stoian”) at [91], quoting Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23, as follows:
i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation” (All ER page 265)];
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788];
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at [22];
v.the gross sum “can only be fixed broadly having regard to the information before the Court”: Beach Petroleum at 124;
[in Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enables fixing a gross sum “only if I apply a much broader brush than would be applied on taxation, but that…is what the rule contemplates”.]
vi.nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119 at 120;
vii.in terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No. 2) (1995) 57 FCR 119, put the matter as follows, at [16]:
“On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary “fail safe” discount on the cost estimates submitted to the Court: Leary v Leary at 265…”
By reference to relevant authorities, it has been held that the purpose of empowering courts to order costs in a fixed sum is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation. In circumstances where the second respondent has, to date in respect of these proceedings, incurred costs in the order of approximately $19,000, as set out in the costs notice filed by her legal practitioners, I am satisfied that, to the extent that it is reasonably possible, further cost, delay and aggravation should be avoided.
In those circumstances, according to the decision of Kent J in Stoian, it is necessary for the Court to be satisfied that the estimate of costs is logical, fair and reasonable. In that sense, his Honour referred to Beach Petroleum NL v Johnson (1995) 57 FCR 119 at [265]. Having regard to the costs notices provided by the solicitors for the second respondent, I am satisfied that their costs sought are logical, fair and reasonable, and based on the appropriate scale, and I will order the applicant to pay costs of the second respondent in the sum of $3,500 within 28 days of these orders.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 6 May 2022
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