Fierro & Fierro (No 3)

[2022] FedCFamC1A 175

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Fierro & Fierro (No 3) [2022] FedCFamC1A 175 

Appeal from:

Fierro & Fierro (No 4) [2022] FedCFamC1F 687

Appeal number(s):

NAA 204 of 2022

File number(s):

SYC 7639 of 2021

Judgment of:

TREE J

Date of judgment:

26 October 2022

Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Dispensation of transcript – Where there is no evidence as to the applicant’s financial circumstances – Where the grounds of appeal lack particularity – Where the transcript may be relevant to the grounds of appeal – Where it is difficult to identify any viable ground of appeal that does not require transcript – Provision of transcript – Where the factors to be taken into account tell against the Court paying for transcript – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Review of registrar’s decision – Where the applicant seeks a review of the appeal judicial registrar’s refusal to include certain documents in the appeal book – Whether those documents were before the primary judge – Where any relevance to those documents cannot be determined – Where the applicant is permitted to file a contentious appeal book within 14 days – Summary judgment – Where there is no evidence as to why resistance of the appeal is doomed to fail – Application dismissed.   

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act2021 (Cth) s 32

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 10.09, 10.10, 13.10, 13.19, 13.40

Cases cited:

Bele v Vaughan (No 2) (2012) 268 FLR 411; [2012] FamCA 125

Forbes v Bream (2008) 222 FLR 96; [2008] FamCAFC 189

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

Wellington & Child Support Registrar [2012] FamCAFC 34

Number of paragraphs:

35

Date of hearing:

21 October 2022

Place:

Cairns (via telephone link)

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

Solicitor for the Independent Children's Lawyer:

Tasmania Legal Aid

ORDERS

NAA 204 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:	TREE J
DATE OF ORDER:	26 october 2022

THE COURT ORDERS THAT:

1.No later than 4.00 pm on 9 November 2022 the applicant is to make file and serve a contentious appeal book limited to copies of the documents comprising:

(a)Exhibits …1 and …86 to the applicant’s affidavit of 11 April 2022;

(b)Exhibit …1 to the applicant’s affidavit of 27 July 2022;

(c)Tender Bundle Exhibits: …1; …1; …1; ICL1; …1; …1; …1 and …1;

(d)Affidavit of the first respondent filed 1 September 2022 2020; and

(e)Affidavit of the second respondent filed 8 April 2022 2021.

2.Otherwise the applicant’s Application in an Appeal filed 3 October 2022 and Amended Application in an Appeal filed 18 October 2022 be dismissed.

Amended pursuant to r 10.13(1)(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 27 October 2022

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 (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

introduction

1. On 13 September 2022 a judge of the Federal Circuit and Family Court of Australia (Division 1) dismissed proceedings brought by the applicant which sought to vary final consent orders made between the same parties only some five months earlier.

2. The applicant appealed from that order on 19 September 2022, and on 3 October 2022 filed an Application in an Appeal seeking that he be excused from the obligation to provide the transcript of the hearing before the primary judge for the purposes of that appeal.

3. On 13 October 2022, an appeal judicial registrar made procedural orders readying the appeal for hearing before the Full Court. On 17 October 2022, the applicant filed a second Application in an Appeal (amended on 18 October 2022) seeking firstly, to review the appeal judicial registrar’s orders of 13 October 2022 so as to include further documents in the appeal book, and secondly, orders for summary judgment in the appeal.

4. Both those applications were listed for hearing before me on 21 October 2022, on which occasion both respondents and the Independent Children's Lawyer opposed the making of any orders as sought by the applicant. For the reasons that follow, save that the applicant may file a contested appeal book, both Applications in an Appeal will be dismissed.

   background

5. The underlying parenting proceedings relate to the first and second respondents’ 14 year old child. The applicant is the child’s half-brother, and the son of the first respondent.

6. Following the breakdown of the first and second respondents’ relationship, on 21 May 2021 final consent orders were made between the applicant and the first and second respondent. Those orders provided for the child to live with the first and second respondents, but that no communication occur, or time be spent, between the child and the applicant unless the child initiates the contact.

7. On 20 October 2021, the applicant filed an Initiating Application seeking to vary those orders, with the last iteration of that application seeking that he be able to spend time with the child at his discretion, and that the child be removed from the care of the first respondent.

8. Ultimately, the matter came before the primary judge on 19 August 2022 for the discrete hearing of whether it was in the child’s best interests to permit further litigation in relation to her, as advanced in the applicant’s Initiating Application. On 13 September 2022 his Honour dismissed the applicant’s Initiating Application.

9. The appeal is listed for hearing on 7 December 2022.

   application for dispensation of transcript

10. Rule 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that the applicant or, if so ordered, the cross-applicant, is responsible for obtaining any transcript of the hearing relevant to the appeal or cross‑appeal. It may be taken as uncontroversial that under r 1.31 the court may, where it is consistent with the interests of justice, dispense with that requirement.

11. Here, the applicant says that transcript “is unnecessary to determine the issues” raised by his appeal (applicant’s affidavit filed 4 October 2022, paragraph 2). However that is far from clear, in large part because what the applicant contends in the appeal is opaque. His current grounds are as follows:

    1.        Errors of law.

    2.        Failure to take into account relevant considerations.

    3.        Incorrect findings of fact.

    4.        Wednesbury unreasonableness.

    5.        Breach of procedural fairness and natural justice.

    6.        Bias and/or apprehended bias.

12. The complete want of any particularity renders such grounds meaningless, so whether events at the hearing may prove relevant is altogether unclear. Thus it is unclear whether, under Ground 2, the contended relevant considerations were pressed by the applicant before the primary judge, or under Ground 3, what findings of fact the applicant – and indeed the other parties – urged. More significantly, the alleged breach of procedural fairness and natural justice, and the contended “bias and/or apprehended bias” may well pertain to events at the hearing, and hence a transcript would be required.

13. In his affidavit in support of the application, the applicant contends that “the court below failed to consider the two affidavits in support (Affidavits of 22 July 2022 and 11 April 2022) which comprised my entire case as referred to at par [1] of my submission to the court below of 17 Aug 2022” (applicant’s affidavit filed 4 October 2022, paragraph 2). It is unclear on what basis the applicant says these affidavits were not considered by the primary judge, although it is true they are not expressly referred to in his Honour’s reasons. It is quite possible that the transcript would shed some light on this question.

14. The applicant is in receipt of social security benefits and asserts he suffers from “a debilitating medical condition”. Inferentially he might be claiming that he cannot afford transcript, said to be at a likely cost of $1,100. However absent evidence directly to that effect, on the present material I would be reluctant to so find on the balance of probabilities.

15. Of course, the merciful thing might be to dispense with transcript on the applicant’s acceptance that its absence would render any argument or ground in any way dependant on the events of 19 August 2022 unarguable, but really, given the wholly unsatisfactory nature of the grounds, that is equally unsatisfactory, as it will likely only see the parties obliged to argue about that, when transcript would obviate any such bickering. Also relevant here is the difficulty in identifying any realistically viable ground of appeal that does not require transcript (or indeed, any realistically viable ground at all).

16. I decline to dispense with transcript.

17. At the hearing of the application, the applicant orally advanced an application that the Court should obtain the transcript at its expense.

18. There is no provision in either the Family Law Act 1975 (Cth) or the Rules which provides a basis for the Court to meet the costs of the transcript, nor is the Court funded to pay for transcript for applicants.

19. Nonetheless the authorities make plain that the Court has a discretion to provide transcript if the interests of justice require it, but that will usually only be in exceptional circumstances (Forbes v Bream (2008) 222 FLR 96 at [36]; Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 (“Sampson & Hartnett”) at [14] and [83]).

20. The Full Court in Sampson & Hartnett has provided some guidance as to the factors that a Court may take into account in determining whether or not to exercise such discretion to provide transcript, namely (at [16]):

    (a)       Whether the case is a financial or parenting case.

    (b)Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal.

    (c)The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript;.

    (d)The proportionality of the cost of the transcript to the applicant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).

    (e)       The prima facie merits of the appeal.

    (f)Whether the question of providing a transcript can be left to the Full Court hearing the appeal.

    (g)       Any other relevant facts or circumstances.

21. By reference to those matters:

    (a)the appeal arises from a parenting case, albeit a rather unusual one in which a sibling is the moving party;

    (b)the transcript is likely necessary for the determination of the appeal;

    (c)the cost is said to be $1,100 but the material does not permit me to conclude that it is beyond the capacity of the applicant to fund it;

    (d)it appears transcript would be the only cost of the appeal for the applicant;

    (e)it is not presently possible to discern merit in the appeal;

    (f)the provision of transcript is not conveniently deferred to the Full Court;

    (g)I can identify nothing further which is relevant to the Court funding transcript.

22. Weighing those matters tells, at least presently, firmly against the Court paying for transcript in this appeal.

    application for review of registrar’s decision

23. The applicant’s Amended Application in an Appeal filed 18 October 2022 seeks a review of an appeal judicial registrar’s refusal to include certain documents in the appeal book. Rule 13.40 of the Rules provides:

    (1)      A party may apply for a review of:

    (a)an Appeal Judicial Registrar's order relating to the conduct of an appeal; or

    (b)the rejection of a document by an Appeal Judicial Registrar.

    (2)An application under subrule (1) may be made by filing an Application in an Appeal in the National Appeal Registry, within 21 days after the order is made or the document is rejected.

24. A review of an appeal judicial registrar's decision is a hearing de novo (Harris v Caladine (1991) 172 CLR 84; Bele v Vaughan (No 2) (2012) 268 FLR 411; Wellington & Child Support Registrar [2012] FamCAFC 34). This means that it is not necessary for the applicant to demonstrate error in the appeal registrar’s decision at first instance.

25. Given that the hearing is de novo, the matters to be considered are those which ought to apply in respect of the relief sought at first instance.

26. As I have indicated, the applicant seeks to include a number of documents in the appeal book which he says were before the primary judge. On the material filed in support of the application, it is simply not possible to determine whether they were, or were not, properly before the primary judge. Even if they were properly before him, given the inadequacy of the grounds of appeal, any relevance of those documents to the appeal also presently cannot be determined.

27. The simplest way forward is to permit the applicant to file a contentious appeal book which may only contain that proposed material, and nothing else. Before me, that course was not opposed by any party. It should be filed within 14 days.

    application for summary dismissal

28. Also in his Amended Application in an Appeal filed 18 October 2022, the applicant seeks orders as follows:

    3. Summary Judgment in accordance with reg 10.09(1)(d).

    4.Summary Judgment on ‘no prospects of success’ issue in accordance with reg 10.10(1)(a), (b), (d).

    5.Any order the court deems fit.

29. The reference to “reg” is presumably a reference to the Rules. In any event, rr 10.09 and 10.10 do not apply to appeals. Whilst there is a power to give summary judgment in an appeal under s 32(3)(b) of the Federal Circuit and Family Court of Australia Act2021 (Cth), the exercise of such a power necessarily would require an understanding of the appeal, something not possible given the current grounds.

30. Only one paragraph of the applicant’s affidavit filed in support of the Amended Application in an Appeal dealt with this aspect, but it is entirely argumentative, which means that there is no evidence as to why resistance of the appeal is doomed to fail.

31. In his short written submissions, filed 19 October 2022, the applicant seems to contend:

    (a)the primary judge failed to consider his written submissions of 17 August 2022 and the two affidavits referred to in them, but rather referred to an “incorrect affidavit of 5 August 2022” said to have been filed by the applicant in connection with another application;

    (b)the primary judge’s alleged bias is based upon an allegedly incorrect finding that a contravention application was dismissed, when in fact it was withdrawn by the applicant.

32. It completely escapes me how these arguments, even if correct – and I have no evidence which would enable me to so conclude, and indeed, contrary to his submission, his Outline of Submissions filed 17 August 2022 expressly relied upon the 5 August 2022 affidavit – would render any resistance of the appeal futile.

33. I decline to summarily allow the appeal, and it shall therefore proceed to hearing as listed.

    outcome

34. Save that the applicant may file a contentious appeal book containing the material discussed earlier, both Applications in an Appeal will be dismissed.

    conclusion

35. Finally I should explain that, but for the appeal being listed for 7 December 2022, and relatively tight time frames being imposed by orders readying it for that hearing, ordinarily I would use this opportunity to require the applicant to file an Amended Notice of Appeal containing properly particularised grounds. However notwithstanding r 13.10, in practical terms the time for doing so has probably passed, given it is quite likely that any such redrafting would only precipitate further controversy, as I am far from confident that proper grounds would ever be produced by the applicant. But I should make it plain that his present grounds are woefully inadequately expressed, and he would be well advised to attempt to properly draft them at least by the time his Summary of Argument is filed on 17 November 2022.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:       26 October 2022