Fierro & Fierro (No 6)

Case [2022] FedCFamC1F 1006

Federal Circuit and Family Court of Australia

(DIVISION 1)

Fierro & Fierro (No 6) [2022] FedCFamC1F 1006

File number(s): SYC 7639 of 2021
Judgment of: BERMAN J
Date of judgment: 16 December 2022
Catchwords:  FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Where the second respondent and the ICL seek costs in relation to the applicant’s dismissed Initiating Application – Where the Initiating Application was forlorn of hope, likely to represent an abuse of process and was wholly unsuccessful – Consideration of whether the costs should be payable on a party/party basis or on an indemnity basis – Consideration of Prantage & Prantage (2013) FLC 93-544 – Orders.
Legislation: Family Law Act 1975 (Cth) ss s 117(2A), 117(2A)(g)
Cases cited:

Fierro & Fierro(No 4) [2022] FedCFamC1F 687

Fierro & Fierro (No 5) [2002] FedCFamC1F 948

Kohan & Kohan (1993) FLC 92-340

Prantage & Prantage (2013) FLC 93-544
Division: Division 1 First Instance
Number of paragraphs: 39
Date of hearing: 13 December 2022
Place: Adelaide via MS Teams
Counsel for the Applicant: No appearance by or on behalf of the Applicant
Counsel for the First Respondent: Litigant in person
Counsel for the Second Respondent: Mr Trezise
Solicitor for the Second Respondent: Dobson Mitchell Allport
Counsel for the Independent Children's Lawyer: Ms Watson
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:

16 December 2022

THE COURT ORDERS THAT:

1.Within twenty eight (28) days, Mr Fierro pay the costs of Ms Bien in the sum of THIRTY SIX THOUSAND THREE HUNDRED AND TWENTY FOUR DOLLARS ($36,324) and the costs of the Independent Children’s Lawyer in the sum of FIVE THOUSAND AND EIGHTY ONE DOLLARS ($5,081). 

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 law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Berman J

Introduction

  1. By Application in a Proceeding sealed 20 October 2022, Ms Bien (“the second respondent”) seeks an order that Mr Fierro (“the applicant”) pay her costs, calculated on an indemnity basis, in the sum of $36,324.

  2. By Application in a Proceeding sealed 24 October 2022, Simone…

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Details
AGLC
Fierro & Fierro (No 6) [2022] FedCFamC1F 1006
Case
[2022] FedCFamC1F 1006
Decision Date

CaseChat Overview and Summary

In the matter of Fierro & Fierro (No 6), the applicant, a half-sibling of the child, sought various orders in respect of the child. The first and second respondents are the parents of the child. The applicant, who is the son of the first respondent from a previous marriage, has a history of unsuccessful litigation attempts to establish a relationship with the child. The Federal Circuit and Family Court of Australia was required to determine the appropriate costs orders in light of the applicant’s unsuccessful endeavours. The court considered the extensive history of the proceedings, including previous judgments and applications for costs. The court examined the applicant’s conduct, which included large volumes of documents and affidavit material that lacked probative evidence but contained scandalous allegations. The court concluded that the applicant’s intent appeared to be vexatious rather than genuinely interested in the child.

The legal issues before the court were whether the costs of the second respondent and the Independent Children’s Lawyer (ICL) should be ordered on a party/party basis or on an indemnity basis. The court referred to the Full Court’s discussion in Prantage & Prantage and the decision in Kohan & Kohan to guide its determination. The court noted that while there was no inhibition to considering indemnity costs, such an order represented a significant departure from the norm. The court found that the applicant’s Amended Initiating Application was forlorn of hope and likely to be an abuse of process, intended to cause financial harm to the second respondent and the ICL. This consideration was sufficient to warrant an order for indemnity costs. The court was satisfied with the quantum of costs as properly calculated.

The court ordered that the applicant pay the costs of the second respondent and the ICL on an indemnity basis. The detailed reasons for the order were outlined in the judgment, emphasizing the applicant’s vexatious conduct and the potential financial impact on the second respondent and the ICL. The court concluded that the indemnity costs order was justified given the circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

Mr A Fierro (“the first respondent”) is a self-represented litigant and as such, does not seek an order for costs as against the applicant.Background The applicant commenced these proceedings on by Initiating Application on 20 October 2021, seeking orders in respect of X born 2008 (“the child”). The applicant’s Initiating Application was the subject of amendment on 6 February 2022 (the Amended Initiating Application”) which expanded the orders that he sought in respect of the child. Following a hearing on 19 August 2022, Orders were made on 13 September 2022 which dismissed the applicant’s Initiating Application sealed on 20 October 2021. The applicant appealed the Order dismissing his Initiating Application. The appeal was unsuccessful and the matter comes back before me for a determination of the Applications for costs of the second respondent and the ICL. The first and second respondents are the parents of the child. The applicant is the child’s half sibling. He is also the son of the first respondent from a previous marriage. Final Consent Orders were made on 21 May 2021 (in file number PAC2535 of 2020) that provided for the applicant to be restrained from communicating with the child, otherwise than as agreed in writing or if communication was initiated by the child. It is not controversial that the child has not sought to communicate and/or spend time with the applicant. It is a reasonable finding that the child has no interest in having any relationship with the applicant. For reasons that are not easily understood, the applicant has persisted with ongoing litigation in respect of attempting to re-enliven the parenting proceedings. The applicant has been unsuccessful in respect of his endeavours. I rely upon paragraphs 25 to 45 of my judgment being Fierro & Fierro (No 4) [2022] FedCFamC1F 687 outlining the history of the proceedings. I am also aware of the judgment of Smith J in Fierro & Fierro(No 5) [2002] FedCFamC1F 948 wherein his Honour dismissed the Contempt Applications of 17 and 15 February 2022 and the Contravention Application of 16 March 2022. Consequent upon the disposal of the applicant’s appeal, the Applications for Costs were listed before me on 13 December 2022. The applicant did not appear. I am satisfied that he has had proper notice of the Applications for Costs and the date and time of the remote hearing upon which those Applications were to be heard and determined. The first respondent appeared as a self-represented litigant, the second respondent was represented by counsel and the ICL appeared on her own account. The second respondent relied upon her Affidavits sealed 10 October 2022 and 8 December 2022. The second respondent details the applicant’s conduct in the proceedings at paragraphs 12 to 21 of her affidavit of 10 October 2022. The conduct of the applicant, as evidenced by large volumes of documents and affidavit material that does not contain any probative evidence but is redolent with scandalous allegations, raised a consideration as to whether his intent is vexatious rather than holding a genuine interest in the child.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Accordingly, I propose to order that the applicant pay the costs of the second respondent and the ICL.Consideration of party/party costs or indemnity costs The question that remains is whether the costs of the ICL and the second respondent should be payable on a party/party basis or on an indemnity basis. The discussion of the Full Court in Prantage & Prantage (2013) FLC 93-544 (“Prantage”), is of assistance in determining whether and in what circumstances, an order for indemnity costs should be made. In Prantage (supra), the Full Court referred extensively to the decision of Kohan & Kohan (1993) FLC 92-340 (“Kohan”). At [77] of Prantage (supra), it was noted that, whilst there was nothing in the Act which in any way “inhibits” a consideration of indemnity costs, the following is said in Kohan (supra) at 79,605:-…it is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale, and what its likely impact will be on the financial position of each of the parties. This impact was a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under sec 117(2A)(a), or perhaps even more as a relevant matter under (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis. Whilst I do not consider that the matters before the Court were of significant complexity, the applicant’s Amended Initiating Application was forlorn of hope and likely to represent an abuse of process given that its intention was to cause financial harm to the second respondent and, by way of collateral damage, the ICL. That consideration is sufficient to impose an order for indemnity costs. I am satisfied that the quantum of costs as has been properly calculated. I make orders as appear at the commencement of these reasons.