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:

1. 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 13 September 2022.

2. The costs orders were made in response to costs applications filed by the second respondent and the Independent Children’s Lawyer (“the ICL”). The applicant did not appear and was not represented at the costs hearing on 13 December 2022.

3. On 15 February 2023, the applicant filed an Amended Application in an Appeal seeking these three orders:

   1.The transcript of the court below is dispensed with

   2.Order to alter the ordinary manner and course of the substantive appeal proceeding granting short cross-examination of [the first respondent] at final hearing

   3.Order to alter the ordinary manner and course of the substantive appeal proceeding granting short cross-examination of [the second respondent] at final hearing

4. The applicant relied upon his affidavit filed on 15 February 2023 in support of his application.

5. These reasons deal with that application.

   Transcript

6. Ordinarily, pursuant to r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), an appellant must file the transcript of the proceedings below by the date ordered (rr 13.18(2)(e) and 13.19(4)) or the appeal is deemed abandoned.

7. In this instance, on 14 February 2023, the appeal registrar ordered that the applicant file and serve the transcript of the hearing below by 7 March 2023, otherwise the appeal would be deemed abandoned.

8. The hearing before the primary judge on 13 December 2022 was confined to one day and, inferentially, entailed only submissions made by the other parties. The applicant did not appear and was not represented at the hearing. His grounds of appeal against the costs orders contend for actual judicial bias, apprehended judicial bias, errors of law, and incorrect findings of fact. Accordingly, he contends the transcript of the hearing before the primary judge is irrelevant to the determination of the appeal and so its procurement is unnecessary.

9. That being so, the requirement for the provision of transcript is dispensed with. The contrary orders of the appeal registrar will be discharged and the applicant will be relieved of the usual consequences of the failure to file transcript. The application for Order 1 is granted.

   Cross examination

10. The applicant seeks permission to cross-examine both the first and second respondent “at final hearing”, but was unspecific about whether he meant the “final hearing” of the appeal or any first instance re-hearing which might be ordered. In either case, the application betrays a serious misunderstanding of these proceedings.

11. The appealed costs orders were made in favour of only the second respondent and the ICL. No costs order was made in favour of the first respondent, who did not even seek such an order against the applicant. According to the primary judge’s reasons, the first respondent did not rely upon any affidavit in the costs proceedings and, as he was not a witness, there could be no conceivable basis upon which the applicant could cross-examine him with the objective of defeating the appealed orders.

12. The second respondent filed and relied upon two affidavits in the costs proceedings, as were identified by the primary judge in the reasons for judgment (at [16]), but the applicant chose to absent himself from the hearing and not cross-examine her upon such evidence. That must have been a deliberate choice by the applicant because the primary judge was satisfied he had been properly served with process in a timely way (at [14]) and he has not since sought to re-open the proceedings before the primary judge by explaining how his absence was due to some misadventure (Allesch v Maunz (2000) 203 CLR 172; Taylor v Taylor (1979) 143 CLR 1; rule 10.13(1)(a) of the Rules).

13. The primary judge accepted the second respondent’s unchallenged evidence, at least in part (at [17]–[20] and [31]–[32]), and relied upon it to make the costs order in her favour. However, in the appeal, the applicant now contends:

    9.Given the findings made by the primary judge and the indemnity costs order resting upon the respondents material I seek to cross on the respondent material. The interests of justice demand it. …

    (Applicant’s written submissions filed 20 February 2023)

14. But the applicant is bound by his original decision to abstain from cross-examining the second respondent. The substantive appeal is conducted by way of re-hearing (Allesch v Maunz at 179–181 and 187). The applicant cannot revise his decision as if the appeal is a hearing de novo. Section 35(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) furnishes the Court with discretion to allow further evidence to be adduced in the appeal by way of oral examination, but there are well recognised limits to the introduction of further evidence in an appeal by re-hearing (CDJ v VAJ (1998) 197 CLR 172). The applicant could not choose to abstain from participation in the original hearing without consequence. The right of appeal is 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 (Hsiao v Fazarri (2020) 270 CLR 588 at [53]).

15. Alternatively, if the applicant was seeking permission to cross-examine the second respondent before the primary judge or another judge exercising original jurisdiction, that would only be possible if the appeal first succeeds and the second respondent’s costs application is remitted for re-hearing. In that event, permission for the applicant to cross-examine the second respondent in the re-hearing will either be granted or refused by the judge to whom the proceedings are remitted; not by the Full Court or any single judge exercising appellate jurisdiction.

16. The applications for Orders 2 and 3 are refused and dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       23 February 2023