Fierro & Fierro (No 7)

Case [2023] FedCFamC1A 24

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Fierro & Fierro (No 7) [2023] FedCFamC1A 24

Appeal from: Fierro & Fierro (No 5) [2022] FedCFamC1F 948
Appeal number: NAA 263 of 2022
File number: SYC 7639 of 2021
Judgment of: AUSTIN, WILLIAMS & HOWARD JJ
Date of judgment: 14 March 2023
Catchwords:

FAMILY LAW – APPEAL – Contempt – Where the primary judge dismissed all contempt counts alleged against the respondents – Error of law – Where the primary judge conflated two different legal tests when dismissing the contempt counts – Where allegations of contempt are not amenable to application of the summary dismissal principles which apply in conventional civil proceedings – Where the primary judge erred at law – Where there was no miscarriage of justice as the dismissal orders are plainly correct for other reasons and should not be disturbed – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the proposed evidence does not make it clear how or why the primary judge erred by dismissing the contempt counts against the respondents – Application dismissed.

Legislation:

Crimes Act 1914 (Cth) ss 35, 36

Evidence Act 1995 (Cth) Ch 3

Family Law Act 1975 (Cth) Pt VII, ss 69ZM, 69ZT, 112AP

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 45, 46

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09, 11.70, 11.71

Criminal Procedure Act 1986 (NSW) ss 17, 18
Cases cited:

Australian Securities and Investments Commission v Healey (2011) 196 FCR 291; [2011] FCA 717

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21

Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2

Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48

Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

European Asian Bank AG v Wentworth (1986) 5 NSWLR 445

Fierro & Fierro (No 4) [2022] FedCFamC1A 208

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

Fraser v The Queen [1984] 3 NSWLR 212

House v The King (1936) 55 CLR 499; [1936] HCA 40

James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347; [1986] FCA 41

Keeley v Brooking (1979) 143 CLR 162; [1979] HCA 28

Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; [2009] FCAFC 117

May v O’Sullivan (1955) 92 CLR 654; [1955] HCA 38

Mead v Mead (2007) FLC 93-327; [2007] HCA 25

Re Colina; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57

Registrar of the Court of Appeal v Collins [1982] 1 NSWLR 682

Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28

New South Wales  v Beck [2013] NSWCA 437

Tate v Johnson (1953) 70 WN (NSW) 302

Witham v Holloway

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AGLC
Fierro & Fierro (No 7) [2023] FedCFamC1A 24
Case
[2023] FedCFamC1A 24
Decision Date

CaseChat Overview and Summary

In this case, the appellant, who is the half-sibling of a child, appealed against the dismissal of his contempt applications against the child's parents, the respondents. The primary judge had dismissed the contempt applications and the appeal was heard in the Family Court of Australia. The appeal centred on the dismissal of the contempt applications by the primary judge, who had ruled that the respondents had not breached the orders made in May 2021, which regulated communication between the appellant and the child.

The legal issues the court needed to decide included whether the primary judge had correctly applied the legal principles in dismissing the contempt applications and whether the proposed further evidence adduced by the appellant would assist in determining the appeal. The court had to consider whether the primary judge had correctly exercised his discretion in dismissing the contempt applications and whether the proposed further evidence was relevant and necessary to the appeal.

The court held that while the primary judge had fallen into error by incorrectly applying legal principles, the dismissal orders were correct for other reasons and should not be disturbed. The proposed further evidence did not make it clear how or why the primary judge had erred in dismissing the contempt counts against the respondents, and it did no more than underscore the antipathy which continued to prevail between the parties. The appeal was dismissed.

The court dismissed the appellant's application to adduce further evidence in the appeal and dismissed the appeal itself. The primary judge's dismissal of the contempt applications was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The primary judge did fall into error by incorrectly applying legal principles when dismissing the contempt applications but, since the dismissal orders are so plainly correct for other reasons, they should not be disturbed. The appeal will be dismissed.background The appellant and the respondents formerly litigated their dispute over a teenage child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), which litigation was finalised by consent orders made between them on 21 May 2021. The appellant is the child’s older half-sibling. The respondents are the child’s parents. The first respondent is the appellant’s father and the second respondent is his step-mother. The orders made in May 2021 provide for the child to live with the respondents and for them to have parental responsibility for her. The orders make no specific provision for any physical interaction between the appellant and the child, but do regulate their communication by:(a)restraining the appellant from communicating with the child, unless either she initiates it or the respondents agree to it; and(b)permitting the appellant to send gifts to the child, but only on special occasions and without any attendant correspondence. In October 2021, the appellant commenced fresh proceedings seeking to revise the consent orders made several months before in May 2021. His application was later dismissed in September 2022, because he failed to demonstrate any change of circumstances to warrant any such revision (Fierro & Fierro (No 4) [2022] FedCFamC1F 687). His appeal from that decision was dismissed in December 2022 (Fierro & Fierro (No 4) [2022] FedCFamC1A 208). The appellant has since filed an application in the High Court of Australia seeking special leave to appeal from the Full Court’s decision, but that application is yet to be entertained. While the parenting proceedings were pending, the appellant filed two contempt applications against the respondents – one on 15 February 2022 and the other on 17 February 2022. Both were dismissed by the primary judge on 5 December 2022 (Orders 1–2). In addition, the appellant filed a contravention application against the respondents on 16 March 2022. It too was dismissed on 5 December 2022 (Order 3), but with the appellant’s consent, as he intended its withdrawal because the alleged contraventions overlapped the contempt counts (at [29] and [125]). The appellant’s frustration about his lack of personal interaction with the child was the apparent genesis for the contempt and contravention applications, though it was not in doubt the child openly expressed her desire not to see or communicate with him. In evidence before the primary judge was a letter written by the Independent Children’s Lawyer (“the ICL”) to the parties on 16 June 2022 explaining the child’s express wishes in these terms (at [10]):…[the child] knows that she is able to contact [the appellant] when and if she chooses…She said that she had no reason to speak with [the appellant] and that she would prefer no contact with him.…She said that she didn’t want gifts from [the appellant]…She would prefer not to receive gifts in the future from [the appellant].

Evidence

Evidence Before The Court

The day before the appeal hearing, the respondents furnished to the appeal registrar an affidavit they purported to jointly swear or affirm on 1 March 2023. It was not filed, but had been served upon the appellant. The respondents sought to rely upon it in the appeal. The appellant objected and it was rejected. The respondents were ordered by the appeal registrar to file and serve their Summaries of Argument by 13 February 2023, but neither did so. They could not expect to have taken into account an affidavit comprising 85 pages of commentary and miscellaneous documents which lacked any ostensible relevance to the specific grounds of appeal.Appellant’s applications to adduce further evidence in the appeal By an Application in an Appeal filed on 12 January 2023, the appellant seeks leave to adduce further evidence in the appeal. The application itself is unspecific about the nature of the evidence the appellant wants to adduce, but it is accompanied by the appellant’s affidavit filed on 12 January 2023. Inferentially, the proposed further evidence is the text of, and the annexures to, that affidavit. By way of summary, the proposed further evidence comprises:(a)several audio files recording conversations between the appellant and a relative of the second respondent, which the appellant recorded between September and November 2022 (and the transcriptions thereof) – being after the contempt hearing in September 2022, but before the pronouncement of judgment in December 2022;(b)commentary by the appellant summarising his perception of the nefarious way in which the respondents conducted the parenting proceedings against him, which he believes unfairly portrayed him as a danger to the child, shows the respondents’ breach of court orders by their “mass denigration” of him, and demonstrates the first respondent’s “prevalent coercive control which is a form of family violence”; and(c)commentary by the appellant about some supposedly significant events involving the parties since “late 2019”. The appellant deposed as follows in respect of the relevance and utility of the proposed further evidence:38.The audio/transcription evidence makes it clear that the contempt proceeding should not have been summarily dismissed as there is an arguable case and it warrants a trial to examine the mischief that the respondents have perpetrated on this court, on the appellant and on [the child].39.Accordingly the appellant seeks the audio and transcription material is adduced in the substantive appeal to further demonstrate an arguable case that the respondents are in contempt in the manner submitted in the appellant’s submission to the court below of 6 September 2022.(Affidavit of the appellant filed 12 January 2023) (Emphasis in the original) The application to adduce the further evidence is dismissed. Contrary to the appellant’s belief, the proposed evidence does not make it clear how or why the primary judge erred by dismissing the contempt counts against the respondents. The evidence does no more than underscore the antipathy which continues to prevail between the parties.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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