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Fierro & Fierro (No 4)

Fierro & Fierro (No 4)

Case [2022] FedCFamC1A 208 7 December 2022

Appeal

Jurisdiction

Bias/Apprehended Bias

Procedural Fairness

Error of Law

Wednesbury Unreasonableness

Costs

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Fierro & Fierro (No 4) [2022] FedCFamC1A 208

Appeal from: Fierro & Fierro (No 4) [2022] FedCFamC1F 687

Appeal number: NAA 204 of 2022

File number: SYC 7639 of 2021

Judgment of: Austin, Rees & Kari JJ

Date of judgment: 7 December 2022

Catchwords:
FAMILY LAW – APPEAL – Parenting – Where the appellant appeals from a decision dismissing his application in relation to the parenting of his half-sister – Where the appellant’s application in those proceedings was dismissed pursuant to the rule in Rice and Asplund (1979) FLC 90-725 – Where the appellant contends there was bias or apprehended bias on the part of the primary judge – Where the primary judge correctly considered whether it was in the best interests of the child to permit further litigation – Where the appellant contends the primary judge limited the appellant’s application at trial to communication – Weight challenge –– Where the appellant failed to identify specific evidence to which the primary judge failed to give proper consideration – Where much of the material the appellant asserts the primary judge did not consider is irrelevant – Where no error is demonstrated – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant sought the recusal of the appeal registrar – Where the registrar’s involvement in the appeal is procedural and the review of the decision has no utility – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the evidence sought to be adduced has no independent evidentiary value – Where the late filing of the application denies the respondents the right to procedural fairness – Application dismissed.

Legislation:
Evidence Act 1995 (Cth) Pt 3.2

Family Law Act 1975 (Cth) Pt VII, Div 12A, s 69ZT(1)(c), 117(2A)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32(3)(c), 32(5)(b), 100(2)

Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 13.39(1)

Cases cited:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

CDJ & VAJ (1998) 197 CLR 172; [1998] HCA 76

De Winter and De Winter (1979) FLC 90-605

Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63

Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52

Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21

Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Number of paragraphs: 84

Date of hearing: 7 December 2022

Place: Melbourne (via videolink)

The Appellant: Litigant in person

The First Respondent: Litigant in person

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

Appellant

AND:
MR A…

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 4)

Details

AGLC: Fierro & Fierro (No 4) [2022] FedCFamC1A 208
Case: [2022] FedCFamC1A 208
Decision Date

CaseChat Overview and Summary

The appeal in Fierro & Fierro (No 4) was dismissed by the Full Court of the Federal Circuit and Family Court of Australia. The appellant, Mr Fierro, sought to appeal against the dismissal of his parenting application regarding his half-sister. The primary judge dismissed the application under the principle in Rice & Asplund. The Full Court found no error in the primary judge's decision and dismissed the appeal. The Court also dismissed two applications filed by the appellant in relation to the appeal process. Firstly, an application seeking the recusal of the appeal registrar was dismissed as the registrar's involvement was procedural and the review of the decision had no utility. Secondly, an application seeking to adduce further evidence was dismissed as the evidence had no independent evidentiary value and the late filing of the application denied the respondents the right to procedural fairness. The Full Court ordered the appellant to pay the second respondent's and the Independent Children's Lawyer's costs of and incidental to the appeal, fixed in the sum of $10,000 and $2,927.07 respectively.

Orders