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 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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
20222020; and(e)Affidavit of the…
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- AGLC
- Fierro & Fierro (No 3) [2022] FedCFamC1A 175
- Case
- [2022] FedCFamC1A 175
- Decision Date
CaseChat Overview and Summary
The matter of Fierro & Fierro (No 3) involves an application by the applicant, who is the half-brother of a 14-year-old child, to vary existing parenting orders. The existing orders were made on 21 May 2021, providing that the child would live with the first and second respondents but that no communication would occur between the child and the applicant unless the child initiates the contact. The applicant filed an Initiating Application seeking to vary those orders, requesting 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. The primary judge dismissed the applicant's Initiating Application on 13 September 2022, and the appeal is listed for hearing on 7 December 2022. The applicant has filed several applications, including an application for dispensation of transcript, an application for review of a registrar’s decision, and an application for summary dismissal.
The legal issues in this case revolve around the applicant's various applications, including the dispensation of transcript, review of the registrar's decision, and summary dismissal. The court was required to determine whether the applicant's applications should be granted and whether the appeal should proceed with or without a transcript. Additionally, the court needed to decide whether the applicant's grounds of appeal were adequate and whether the appeal had any prospects of success.
The court dismissed the applicant's applications for dispensation of transcript and summary dismissal, while granting the application for review of the registrar's decision. The court found that the applicant's grounds of appeal lacked particularity, making it difficult to determine whether a transcript would be necessary. Furthermore, the court held that the applicant's summary dismissal application was premature, as the appeal's merits could not be assessed without understanding the appeal's specifics. Regarding the application for review of the registrar's decision, the court allowed the applicant to file a contentious appeal book containing the proposed material, as it was not possible to determine the relevance of the documents based on the material filed in support of the application.
The final orders of the court are as follows: the application for dispensation of transcript is dismissed, the application for summary dismissal is dismissed, and the application for review of the registrar’s decision is granted. The applicant may file a contentious appeal book within 14 days, containing only the proposed material. The appeal will proceed, but the lack of particularity in the applicant's grounds of appeal may pose challenges in determining the appeal's merits.
The legal issues in this case revolve around the applicant's various applications, including the dispensation of transcript, review of the registrar's decision, and summary dismissal. The court was required to determine whether the applicant's applications should be granted and whether the appeal should proceed with or without a transcript. Additionally, the court needed to decide whether the applicant's grounds of appeal were adequate and whether the appeal had any prospects of success.
The court dismissed the applicant's applications for dispensation of transcript and summary dismissal, while granting the application for review of the registrar's decision. The court found that the applicant's grounds of appeal lacked particularity, making it difficult to determine whether a transcript would be necessary. Furthermore, the court held that the applicant's summary dismissal application was premature, as the appeal's merits could not be assessed without understanding the appeal's specifics. Regarding the application for review of the registrar's decision, the court allowed the applicant to file a contentious appeal book containing the proposed material, as it was not possible to determine the relevance of the documents based on the material filed in support of the application.
The final orders of the court are as follows: the application for dispensation of transcript is dismissed, the application for summary dismissal is dismissed, and the application for review of the registrar’s decision is granted. The applicant may file a contentious appeal book within 14 days, containing only the proposed material. The appeal will proceed, but the lack of particularity in the applicant's grounds of appeal may pose challenges in determining the appeal's merits.
Orders
Orders of the court
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Background
Background to the litigation
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 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. 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. 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. 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. The appeal is listed for hearing on 7 December 2022.application for dispensation of transcript 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. 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. 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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Weighing those matters tells, at least presently, firmly against the Court paying for transcript in this appeal.application for review of registrar’s decision 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. 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. 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. 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. 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 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. 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. 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. 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.
Ratio Decidendi
Legal Principle Established
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