Fierro & Fierro (No 5)
[2023] FedCFamC1A 17
•27 January 2023
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Fierro & Fierro (No 5) [2023] FedCFamC1A 17
Appeal from: Fierro & Fierro (No 5) [2022] FedCFamC1F 948 Appeal number: NAA 263 of 2022 File number: SYC 7639 of 2021 Judgment of: AUSTIN J Date of judgment: 27 January 2023 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Recusal – Bias – Where the solitary reason advanced by the appellant for judicial disqualification is an alleged error in a former appeal – Where the appellant has since applied to the High Court of Australia seeking special leave to appeal from that decision – Where even if the High Court finds the Full Court was wrong in the former appeal, mere appealable error is not the manifestation of either actual or apprehended bias – Leave to issue subpoena – Where the documents the appellant wishes to procure cannot assist his prosecution of the appeal – Further evidence – Where the application to adduce further evidence in the appeal will be listed for hearing before the Full Court in conjunction with the substantive appeal – Application otherwise dismissed. Legislation: Crimes Act 1914 (Cth) ss 35, 36
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32
Family Law Regulations 1984 (Cth) Pt IIAB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.39
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (1996)
Cases cited: Australian National Industries Ltd v Spedley Securities Ltd (in liq.) (1992) 26 NSWLR 411
Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fierro & Fierro (No.4) (2022) FLC 94-120; [2022] FedCFamC1A 208
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Keeley v Brooking (1979) 143 CLR 162; [1979] HCA 28
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Newett & Newett (No.2) (2021) FLC 94-051; [2021] FedCFamC1A 11
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22
State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26
Wentworth v Graham [2003] NSWCA 240
Number of paragraphs: 32 Date of hearing: 27 January 2023 Place: Newcastle (via video link) The Appellant: Litigant in person The First Respondent: Litigant in person The Second Respondent: Litigant in person The Independent Children's Lawyer: Did not participate
Table of Corrections 22 March 2023 In paragraph 5 the reference to s 35 of the Federal Circuit and Family Court of Australia Act (Cth) has been corrected to s 32(5). ORDERS
NAA 263 of 2022
SYC 7639 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FIERRO
Appellant
AND: MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
27 JANUARY 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 January 2023 is dismissed in respect of proposed Orders 1 and 3.
2.The Application in an Appeal filed on 12 January 2023 is otherwise listed for hearing before the Full Court on 2 March 2023 in respect of proposed Order 2.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fierro & Fierro (No 5) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAmended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 22 March 2023
AUSTIN J:
This appeal is listed for hearing before the Full Court on 2 March 2023.
On 12 January 2023, the appellant filed an Application in an Appeal seeking three different forms of interlocutory relief: first, my disqualification from hearing the appeal as one member of the Full Court bench; secondly, leave to adduce further evidence in the appeal; and thirdly, leave to procure documents from Country G authorities, either by way of subpoena or “evidence request”, for prospective use in the appeal.
The Application was promptly listed before me for hearing today (27 January 2023), though only the applications for the first and third forms of relief will be determined and explained by these reasons for judgment.
Although the appeal must be heard by the Full Court (s 32(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), I alone should hear the application to disqualify me from sitting on the Full Court in the appeal (Australian National Industries Ltd v Spedley Securities Ltd (in liq.) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240).
The application for permission to acquire documents from Country G for use in the appeal should ordinarily be heard by a single judge (ss 32(3)(c) and 32(5) of the FCFCA Act), and conveniently by me if the anterior disqualification application fails.
The application to adduce further evidence in the appeal will be listed for hearing before the Full Court in conjunction with the substantive appeal, consonantly with r 13.39(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The appellant agreed to that course.
Evidence
To prosecute his applications, over objection, the appellant was permitted to rely upon:
(a)his affidavit filed on 12 January 2023 in support of the Application in an Appeal;
(b)two affidavits filed by him on 11 April 2022 and 27 July 2022 in the original parenting and/or contempt proceedings (Exhibits 1 and 2);
(c)the contentious appeal book filed by him in a separate appeal finalised in December 2022 (NAA 204/2022) (Exhibit 3), which particularly contains a letter dated 11 July 2022 (together with its Country G language translation) sent by a registrar of the Court to the Country G authorities seeking provision of certain documents requested by him;
(d)draft Forms 1A and 1B (Exhibit 4);
(e)an undertaking signed by him on 21 January 2023 which confirms his willingness to bear the cost of translating any response received from the Country G authorities, so as to facilitate compliance with Pt IIAB of the Family Law Regulations 1984 (Cth) (Exhibit 5).
The appellant seemed offended by my suggestion that much of the evidence upon which he relies did not appear relevant to the two specific applications under consideration today but I do not retract the observation, the accuracy of which should become apparent.
Disqualification
The first order sought by the appellant is in these terms:
1. [Justice] Austin is recused or disqualified.
In support of the application, the appellant relied on written submissions he filed on 25 January 2023, in which he asserted my actual bias, but also the reasonable apprehension of my bias in the alternative. He supplemented the submissions orally.
The solitary reason advanced by the appellant for my disqualification from the appeal is that I allegedly fell into error as a member of the former Full Court which, on 7 December 2022, dismissed an earlier appeal brought by him (Fierro & Fierro (No.4) (2022) FLC 94-120). That appeal was unsuccessfully brought from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) dismissing the appellant’s fresh parenting application on grounds that no material change in circumstances justified the revision of parenting orders earlier made in May 2021 with the appellant’s consent.
The appellant recently applied to the High Court of Australia seeking special leave to appeal from the decision, but until such special leave is granted and the proposed appeal succeeds, the decision of the Full Court must be presumed correct (State of NSW v Kable (2013) 252 CLR 118 at [19], [32], [33], [38], [41], [56] and [57]).
Yet the appellant still asserted my error in the former appeal in multiple ways, including by:
(a)ignoring “clear evidence of criminal conduct by the respondents”;
(b)leaving the adolescent child who is the subject of the underlying parenting orders “unprotected” against the risks of harm posed to her by the respondents;
(c)ignoring “clear evidence of the first respondent’s extortion”;
(d)ignoring the “clearly defective and inconsistent nature of the respondents’ evidence and narrative”;
(e)deeming evidence the appellant perceives to be important to be “irrelevant”; and
(f)ignoring evidence of “wilful perjury by both respondents”.
When the former appeal was determined, neither I nor the other members of the Full Court fell into error in the ways the appellant imagines. There was simply no scope or reason to delve into the appellant’s accusations of the respondents’ dishonesty or perfidy. The Full Court did not see or hear from the witnesses who filed affidavits in the proceedings below and neither the admissibility nor the reliability of their evidence was under consideration in the appeal. The appeal was dismissed because the appellant did not demonstrate the primary judge’s bias (at [25]–[47]), he did not demonstrate any factual, legal or discretionary error by the primary judge (at [49]–[70] and [72]–[73]), he did not establish his denial of procedural fairness by the primary judge (at [71] and [74]–[75]), and he failed to demonstrate the appealed judgment was manifestly unjust (at [76]–[81]). The appellant’s application to adduce further evidence in the appeal was dismissed for entirely conventional procedural and substantive reasons according to established legal principles (at [17]–[23]).
Based on the misconceived premise of the asserted errors, the appellant contended the need for my disqualification in these terms within his affidavit:
Austin J dismissed all grounds [of appeal] including the ground of bias and in doing so exhibited actual and/or apprehended bias towards the respondents and against the appellant…
…
If Austin J proceeds in this matter with his already predetermined judgment the case has zero chance to succeed. His Honour must step down given the pre-conceived judgment.
(Affidavit of the appellant filed 12 January 2023, p.2 and 6)
It is unnecessary to recite at length the uncontroversial principles which govern the disposition of applications for disqualification on grounds of judicial conduct – be it for either actual bias (R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72], [127], [176]) or apprehended bias (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344–345; Johnson v Johnson (2000) 201 CLR 488 at 492).
My participation as a member of the Full Court dismissing the appellant’s former appeal for reasons quite different from and unrelated to those he mistakenly believes, could not possibly demonstrate either my actual bias or any reasonable apprehension of my bias against him in the current appeal. The correctness of the former Full Court decision cannot be collaterally attacked now, but, even if the High Court ultimately holds it was wrong, falling into appealable error is not the manifestation of either actual or apprehended bias. Nor is judicial bias evident from merely making a decision with which a litigant is dissatisfied (Newett & Newett (No.2) (2021) FLC 94-051 at [59]–[80]).
Overseas evidence
The third order sought by the appellant is in these terms:
3.Leave to serve the ‘evidence request’ or ‘subpoena’ to the Country G Central Authority the subject of His Honour McGuire J’s order of 15 June 2022 and the Registrar’s order of 12 July 2022 (Exhibit ARG1) for access to the court files of (1) the first respondent [name] criminal charges and/or convictions for child abuse; and (2) [name] child abuse court file (as advised by the Country G Court (Exhibit TR1 at 9)).
(Emphasis added)
The reference to orders made on 15 June 2022 and 12 July 2022 concerns developments in the parenting proceedings, which the appellant started in October 2021 in an attempt to set aside or vary the parenting orders made with his consent in May 2021.
The order made on 15 June 2022 relevantly provided:
1.The application for leave to issue subpoena to an Country G and/or the Supreme Court of Tasmania by the applicant [name] be removed to the Registry Manager, Hobart for determination with a request that the matter be dealt with as soon as practicable.
The registrar acted in accordance with that order, but did not make any order on 12 July 2022 as the appellant asserts. Rather, on 11 July 2022, the registrar corresponded with the Country G authorities requesting production of the documents sought by the appellant. Although there is no evidence of it, I accept as correct the appellant’s unverified assertion that the registrar’s request was rejected by the Country G authorities because it was not made under the provisions of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (1996) (“the 1996 Child Protection Convention”).
But knowing the Country G authorities declined to produce the documents he sought, the appellant pursued the parenting proceedings without them. The proceedings were heard by the primary judge on 19 August 2022, resulting in the dismissal of the appellant’s variation application in September 2022. The appeal from that dismissal order was then subsequently dismissed by the Full Court in December 2022.
However, this appeal lies from quite different orders made by another judge in December 2022, dismissing contempt applications brought by the appellant against the respondents. The appellant did not pursue the use of the Country G documents with the primary judge in the contempt proceedings either.
The appellant now wants to procure the Country G documents for anticipated use in the appeal, which he believes will prove the first respondent’s conviction for assaulting another child years before in that foreign jurisdiction. He apparently wants to use the documents to prove the first respondent knowingly gave false evidence when he filed two former affidavits.
In an affidavit filed by the first respondent in the former parenting proceedings on 1 September 2021, he said:
Nor did I beat [another child] or his mother or sister. I am not a violent man. I have not physically harmed any of my children or my ex wives.
(Affidavit filed by the first respondent on 1 September 2021, at paragraph 73)
Then, in another affidavit filed on 18 August 2022, the first respondent deposed:
I have never mistreated my children or mother.
I have not been charged by police for any crime as the [appellant] alleges.
…
I came back to Country G [in about 2010]…Only once have I hit [the other child] on his butt with a very light wooden spoon…
(Affidavit filed by the first respondent on 18 August 2022, at paragraph 25)
The appellant expects that proof of the first respondent’s dishonest evidence will vindicate the contempt counts alleging he gave “false testimony”, thereby demonstrating the primary judge fell into error in the contempt proceedings by dismissing those particular counts and hence win the pending appeal.
Of course, absent the Country G documents, it is impossible to know precisely what they would reveal. But assuming they would indeed show, or be capable of showing, the first respondent did lie in his affidavits, the appellant is nonetheless mistaken about the utility of the documents because proof of perjury does not prove contempt, unless it is also shown that the perjury was actually intended to obstruct the judicial process (Keeley v Brooking (1979) 143 CLR 162 at 169–170, 172, 174 and 178; Coward v Stapleton (1953) 90 CLR 573 at 578–580).
In general terms, the individual counts of contempt brought by the appellant against the first respondent had to be capable of proving either his flagrant challenge to the Court’s authority by deliberate disobedience of its orders or his interference with its processes by acting contemptuously in the face or hearing of the Court. Proving the first respondent gave false evidence about a solitary factual issue in earlier filed affidavits does not prove either form of contempt because it entails no breach of any court order and no obstruction of the judicial process. Perjury is a separate criminal offence (ss 35 and 36 of the Crimes Act 1914 (Cth)) prosecuted in a different jurisdiction.
It must follow that the documents the appellant still wishes to procure from Country G cannot assist his prosecution of the appeal, so there is no utility in the Court sponsoring his request for their production pursuant to the 1996 Child Protection Convention or granting him the imprimatur of its coercive power to obtain them by subpoena.
Conclusion
The appellant’s applications for proposed Orders 1 and 3 are dismissed.
The appellant’s application for proposed Order 2 is adjourned for hearing before the Full Court in conjunction with the appeal.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 February 2023
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