Federal Circuit and Family Court of Australia
(DIVISION 1)
Fierro & Fierro (No 4) [2022] FedCFamC1F 687
File number(s): SYC 7639 of 2021 Judgment of: BERMAN J Date of judgment: 13 September 2022 Catchwords: FAMILY LAW – CHILDREN – Best interests – Where final parenting orders were made by consent in May 2021 – Where the applicant has initiated proceedings in October 2021 – Where the first and second respondent seek that the applicant’s application be dismissed – Where the integrity of the final Consent Orders are not an issue – Consideration of the rule in Rice & Asplund (1979) FLC 90-725 – Where the applicant has not established any significant material change in circumstances – Where the application has no merit –Where the child has expressed views that she does not know the applicant nor wish to have a relationship with him – Where the ICL makes strong submissions that it is not in the child’s best interest for the proceedings to be enlivened – Where the applicant enlivening litigation will be damaging to the child – Consideration of the potential for summary dismissal of the application pursuant to s 45 of the Act – Consideration of whether the applicant may be considered vexatious – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 45A, 45A(1), 45A(3), 45A(4), 65(c), 67A, 69ZW, 102QB, 118 Cases cited: Marsden & Winch [2009] FamCAFC 152
Marino & Bello and Anor [2020] FamCAFC 314
SPS & PLS [2008] FLC 93-363
Rice & Asplund (1979) FLC 90-729
Division: Division 1 First Instance Number of paragraphs: 86 Date of hearing: 19 August 2022 Place: Heard in Adelaide, delivered in Sydney Counsel for the Applicant: The Applicant appeared in person by MS Teams Counsel for the First Respondent: The First Respondent appeared in person by MS Teams Counsel for the Second Respondent: Mr Trezise appearing by MS Teams Solicitor for the Second Respondent: Dobson Mitchell Allport Counsel for the Independent Children's Lawyer: Ms Watson appearing by MS Teams Solicitor for the Independent Children's Lawyer: Tasmania Legal Aid 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:
BERMAN J
DATE OF ORDER:
13 September 2022
THE COURT ORDERS THAT:
1.The Initiating Application filed 20 October 2021 be dismissed.
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…
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- AGLC
- Fierro & Fierro (No 4) [2022] FedCFamC1F 687
- Case
- [2022] FedCFamC1F 687
- Decision Date
CaseChat Overview and Summary
The case of Fierro & Fierro (No 4) involved a dispute between the parties regarding the communication and time to be spent between the child, her father, and her half-sibling. The case was heard in the Family Court of Australia. The first respondent, who is the child's father, sought to have the initiating application dismissed, while the applicant, who is the child's half-sibling, sought to communicate with the child and spend time with her.
The court was required to decide whether the applicant had standing to bring the application for communication and time to be spent with the child, and whether the application should be dismissed. The court also had to consider the terms of the consent orders made on 21 May 2021, which included restrictions on communication between the applicant and the child.
The court held that the applicant did not have standing to bring the application for communication and time to be spent with the child, as he was not a party to the earlier proceedings and had not been joined as a party in this case. The court also held that the application should be dismissed on the basis that the applicant had not provided sufficient evidence to support his application, and that the terms of the consent orders made on 21 May 2021 were still in effect. The court further held that the applicant had not demonstrated that there had been a sufficient change in circumstances to warrant a departure from the terms of the consent orders.
The court dismissed the application and made no orders in relation to communication or time to be spent between the applicant and the child. The court also noted that the applicant could seek to be joined as a party in any future proceedings if he wished to apply for communication or time to be spent with the child.
The court was required to decide whether the applicant had standing to bring the application for communication and time to be spent with the child, and whether the application should be dismissed. The court also had to consider the terms of the consent orders made on 21 May 2021, which included restrictions on communication between the applicant and the child.
The court held that the applicant did not have standing to bring the application for communication and time to be spent with the child, as he was not a party to the earlier proceedings and had not been joined as a party in this case. The court also held that the application should be dismissed on the basis that the applicant had not provided sufficient evidence to support his application, and that the terms of the consent orders made on 21 May 2021 were still in effect. The court further held that the applicant had not demonstrated that there had been a sufficient change in circumstances to warrant a departure from the terms of the consent orders.
The court dismissed the application and made no orders in relation to communication or time to be spent between the applicant and the child. The court also noted that the applicant could seek to be joined as a party in any future proceedings if he wished to apply for communication or time to be spent with the child.
Orders
Orders of the court
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Background
Background to the litigation
By Response to Initiating Application filed 6 April 2022, Mr A Fierro (“the first respondent”) seeks that the Initiating Application filed 20 October 2021 and the Amended Initiating Applications filed 6 February 2022 and 10 March 2022, be dismissed. The orders sought by the first respondent are supported by the second respondent and the Independent Children’s Lawyer (“ICL”).background The first and second respondents are the parents of the child. The applicant is the child’s half sibling. He is also the first respondent’s son from a previous marriage. Whilst not a party to these proceedings, Mr C is a relative of the applicant and child of the applicant’s sister, Ms F. Mr C, now aged 18 years, brought proceedings seeking to communicate with the subject child on the basis that she is Mr C’s relative. Those proceedings were the subject of a consideration as to whether Mr C had status and standing to bring parenting proceedings and by judgment delivered in Marino & Bello & Anor [2020] FamCAFC 314, his application was dismissed. That order was the subject of an appeal by Mr C, which has now been dismissed. Following the breakdown of the relationship between the first and second respondent, orders by consent were made on 21 May 2021 in proceedings between the applicant and the first and second respondent. It is not immediately apparent as to the circumstances by which the applicant considered he should be involved in the earlier proceedings however, there does not appear to have been any objection to him being a party nor any consideration as to disjoinder. The detail of the Consent Order is significant to the determination as to whether the applicants’ application for communication and time to be spent with the child, should be dismissed. The consent orders made on 21 May 2021 are in the following terms:-Parental Responsibility1.THAT [Mr A Fierro] (“the Father”) and [Ms Bien] (“the Mother”) have equal shared parental responsibility for the child [X] born 2008 (“[X]”).Live with Orders2.THAT [X] live with her Father and the Mother or as otherwise agreed in writing as between the Father and the Mother.Communication between X and Mr Fierro3.THAT [Mr Fierro] (“the Applicant”) be restrained from communicating with [X] by either in person or by text message, mobile telephone, email, letter or any other form of communication unless as:-(a) Otherwise agreed in writing as between the parties; or(b) If initiated by [X].4.THAT Any communication initiated by [X] in accordance with order 3(b) above is only to be for a period of time whilst [X] consents to such communication and the Applicant must cease communicating with [X] if she requests him to do so.5.THAT if communication is initiated by [X] in accordance with order 3(b) and 4 then, for the period of the communication:- (a)the mother and father must do all things necessary to facilitate [X’s] communication with the Applicant including providing her with access to a mobile telephone with call credit at all times. (b)the mother and father are not to interfere, prohibit, discourage or otherwise impede [X’s] communication with the Applicant. 6.THAT the Applicant is permitted to send gifts to [X] on special occasions, such as for Christmas and her birthday, provided that no correspondence is included in the gift other than a card stating who the gift is for and who the gift is from.Restraints7.THAT each party is hereby restrained from denigrating any of the other parties to or within the hearing of [X].8.THAT each party is hereby restrained from discussing the content of the court proceedings with [X], in particular the allegations made by the Applicant, [Mr Fierro] as against [X’s] mother and father.9.THAT each of the parties are restrained from threatening, harassing, abusing or assaulting any other party.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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