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Fierro & Fierro (No 2)

Fierro & Fierro (No 2)

Case [2022] FedCFamC1F 344 6 May 2022

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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…

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] FedCFamC1F 344
Case: [2022] FedCFamC1F 344
Decision Date: 6 May 2022

CaseChat Overview and Summary

In Fierro & Fierro (No 2), the Federal Circuit and Family Court of Australia reviewed the registrar's decision regarding a parenting matter. The applicant, Mr Fierro, sought to serve a letter for evidence abroad, but the registrar had refused to grant service. The applicant contended that no reasons were provided for this refusal, leading to an application for review. The first respondent, Mr A Fierro, and the second respondent, Ms Bien, were the other parties involved. The independent children's lawyer also participated in the proceedings.

The court examined whether the registrar provided adequate reasons for refusing to grant service of the letter for evidence abroad and whether the application for review was correctly made. It was determined that the application was wholly misconceived due to an incorrect procedural approach by the applicant. The court held that the registrar's decision was not reviewable, and no reasons were required to be provided for such a refusal. Consequently, the application for review was dismissed.

The court ordered the applicant to pay the second respondent's costs in a fixed sum of $3,500 within 28 days of the date of the orders. The form of the order was subject to entry in the court's records, and any minor typographical or grammatical errors could be corrected under the relevant rules. The publication of proceedings identifying persons involved in family law matters was prohibited under Section 121 of the Family Law Act 1975 (Cth), except in very limited circumstances.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

Fierro & Fierro (No 2) [2022] FedCFamC1F 344

Most Recent Citation

Fierro & Fierro (No 8) [2023] FedCFamC1F 336

Cases Citing This Decision

Vader & Dantes (No 3) [2023] FedCFamC1F 461
Citation 1

…243 AMS v AIF (1999) 199 CLR 160 B & B (1993) Fam LR 353 Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 Fierro & Fierro (No 2) [2022] FedCFamC1F 344 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Gabaldon & Gabaldon [2015] FamCAFC 59 Gaber & Akh…
SCVG & Estate of KLD (No 2) [2023] FedCFamC1A 105
Citation 2 (Para 21)

…der to minimise the expense and delay that may be associated with taxation of costs. The relevant principles are summarised in Fierro & Fierro (No 2) [2022] FedCFamC1F 344.…
Fierro & Fierro (No 8) [2023] FedCFamC1F 336
Citation 3 (Para 12)

…uments”, which was dismissed on 6 May 2022 on the basis that it was “wholly misconceived” (see Fierro & Fierro (No 2) [2022] FedCFamC1F 344), with an order that the applicant pay the costs of the respondent in the sum of $3,500; (d)A contravention application, which was dismissed on 20 July 2022, subject to costs; (e)Th…

See all citing cases →

Cases Cited

Beach Petroleum NL v Johnson (No 2) [1995] FCA 350
Citation 1

…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 Anoth…
Bondelmonte v Bondelmonte [2017] FamCA 924
Citation 2

…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…
Stoian & Fiening (Costs) [2014] FamCA 944
Citation 3 (Para 16)

…inciples 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,…
Bucceri and Pearson [2014] FamCAFC 46
Citation 4

…ort 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 Fir…
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Citation 5 (Para 16)

…4] 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 Pe…
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another [2005] FamCA 158
Citation 6

…7] 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 Wrenst…
Sony Entertainment (Australia) Ltd v Smith [2004] FCA 1315
Citation 7 (Para 16)

…es JA at [22]; [following (W entworth 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 s…
Harrison v Schipp [2002] NSWCA 213
Citation 8 (Para 16)

…ess 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 (W entworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005)…
Hadid v Lenfest Communications Inc [2000] FCA 628
Citation 9 (Para 16)

…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 ru…
Easterday, Clark Ervin v Australian Securities Commission [1996] FCA 793
Citation 10 (Para 16)

…f 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 s…
Beach Petroleum NL v Johnson [1993] FCA 392
Citation 11 (Para 16)

…, 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 o…
[1987] 1 WLR 72 [1987] 1 WLR 72
Citation 12 (Para 16)

…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…

Legislation Cited

Family Law Act 1975 (Cth) 117
2 mentions (from Para 14)
Family Law Regulations 1984 (Cth)
1 mention
Family Law Rules 2021 (Cth)
1 mention (from Para 1)

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

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