Fierro & Fierro (No 6) - [2023] FedCFamC1A 18

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Fierro & Fierro (No 6) [2023] FedCFamC1A 18

Appeal from: Fierro & Fierro (No.6) [2022] FedCFamC1F 1006

Appeal number: NAA 12 of 2023

File number: SYC 7639 of 2021

Judgment of: AUSTIN J

Date of judgment: 23 February 2023

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Relief from obligation to file transcript – Where the applicant seeks permission to cross-examine both the first and second respondents – Where the first respondent was not a witness in the proceedings – Where the applicant did not cross-examine the second respondent at first instance and is bound by his decision – Application otherwise dismissed.

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 13.22

Cases cited:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

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

Hsiao v Fazarri (2020) 270 CLR 58; [2020] HCA 35

Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38

Number of paragraphs: 16

Date of hearing: 23 February 2023

Place: Newcastle (via video link)

The Applicant: Litigant in person

The First Respondent: Litigant in person

The Second Respondent: Litigant in person

The Independent Children’s Lawyer Tasmania Legal Aid
ORDERS

NAA 12 of 2023
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:

AUSTIN J

DATE OF ORDER:

23 February 2023

THE COURT ORDERS THAT:
1.Orders 3 and 4 made on 14 February 2023 are discharged, the applicant’s obligation to file transcript is dispensed with, and r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) shall not apply.
2.Otherwise, the Amended Application in an Appeal filed on 15 February 2023 is 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fierro & Fierro (No 6) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

The applicant has brought an appeal from costs orders made against him on 16 December 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 1), which is yet to be heard. The costs relate to parenting proceedings conducted between the parties, finalised by orders made on…

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 6)

Details

AGLC: Fierro & Fierro (No 6) [2023] FedCFamC1A 18
Case: [2023] FedCFamC1A 18
Decision Date

CaseChat Overview and Summary

In the matter of Fierro & Fierro (No 6), the applicant sought an appeal against costs orders made in parenting proceedings. The costs orders were made in favour of the second respondent and the Independent Children’s Lawyer. The applicant was absent from the hearing where the costs orders were made and did not cross-examine the second respondent. The appeal sought relief from filing a transcript and permission to cross-examine both respondents. The court considered whether the applicant could be excused from filing the transcript and whether he could be allowed to cross-examine the respondents in the appeal. The court held that the applicant could be excused from filing the transcript as it was irrelevant to the appeal. However, the court dismissed the application to cross-examine the first respondent as there was no basis for doing so. The court also dismissed the application to cross-examine the second respondent as the applicant was bound by his decision to abstain from cross-examining her at first instance.

The court considered the legal issues involved in the appeal, including the requirement to file a transcript and the ability to cross-examine witnesses in an appeal. The court held that the applicant could be excused from filing the transcript as it was irrelevant to the appeal. However, the court held that the applicant was bound by his decision to abstain from cross-examining the second respondent at first instance. The court held that the appeal was conducted by way of re-hearing, and the applicant could not revise his decision as if the appeal was a hearing de novo. The court held that the right of appeal was only the right to review whether the primary judge’s discretion miscarried, not an opportunity to make the case he chose not to make before the primary judge.

The court dismissed the application to cross-examine the first respondent as there was no basis for doing so. The court held that no costs order was made in favour of the first respondent, who did not seek such an order against the applicant. The court held that the first respondent was not a witness, and there could be no conceivable basis upon which the applicant could cross-examine him with the objective of defeating the appealed orders. The court also dismissed the application to cross-examine the second respondent as the applicant was bound by his decision to abstain from cross-examining her at first instance. The court held that the applicant could not revise his decision as if the appeal was a hearing de novo. The court held that the right of appeal was only the right to review whether the primary judge’s discretion miscarried, not an opportunity to make the case he chose not to make before the primary judge.

The court dismissed the application to cross-examine the respondents and discharged the orders requiring the applicant to file the transcript. The court held that the applicant could be excused from filing the transcript as it was irrelevant to the appeal. The court held that the applicant was bound by his decision to abstain from cross-examining the second respondent at first instance. The court held that the appeal was conducted by way of re-hearing, and the applicant could not revise his decision as if the appeal was a hearing de novo. The court held that the right of appeal was only the right to review whether the primary judge’s discretion miscarried, not an opportunity to make the case he chose not to make before the primary judge.

Orders