Fierro & Fierro (No 7)
[2023] FedCFamC1F 190
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fierro & Fierro (No 7) [2023] FedCFamC1F 190
File number: SYC 7639 of 2021 Judgment of: CAMPTON J Date of judgment: 24 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for review of the decision of a registrar to reject an Application in a Proceeding for filing – Where final orders have been made – Where the Application in a Proceeding sought to set aside those orders pursuant to
r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Rules provide no general rule or direction for filing in a proceeding for relief pursuant to r 13.10 after final orders have been made or an application for final orders has been determined – Application for review dismissed – Rules dispensed with so as to permit the applicant to file the Application in a Proceeding.Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 43, 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 2.01, 2.24, 13.10, 14.07, Table 2.1
Cases cited: Fierro & Fierro (No 4) [2022] FedCFamC1F 687
Fierro & Fierro (No 4) [2022] FedCFamC1A 208
Fierro & Fierro (No 7) [2022] FedCFamC1A 24
Division: Division 1 First Instance Number of paragraphs: 29 Date of last submissions: 23 March 2023 Place: Sydney 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
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:
CAMPTON J
DATE OF ORDER:
24 March 2023
THE COURT ORDERS THAT:
1.The Application for Review filed on 1 March 2023 is dismissed.
2.The applicant be granted leave to file on or before 29 March 2023 his Application in a Proceeding dated 23 February 2021 and his affidavit sworn on 23 February 2021.
3.On or before 30 March 2023, the applicant is to file and serve on each respondent and the Independent Children’s Lawyer a sealed copy of his Application in a Proceeding dated 23 February 2021 and his affidavit sworn on 23 February 2021.
4.On or before 14 April 2023, the first and second respondent and the Independent Children’s Lawyer are to serve any Response to an Application in a Proceeding and affidavit in support thereof.
5.All affidavits filed by the parties pursuant to these orders are to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
6.The Application in a Proceeding as filed pursuant to these orders listed for hearing by Microsoft teams 10.00 am on 21 April 2023.
7.For the purpose of the listing on 21 April 2023, the parties and the Independent Children’s Lawyer shall not be permitted to file or rely upon any further affidavit without leave of the Court, other than as provided for by these orders.
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 the pseudonym Fierro & Fierro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine the Application for Review filed by Mr Fierro (“the applicant”) on 1 March 2023 of the refusal by a registrar of this court on 28 February 2023 to accept for filing his Application in a Proceeding dated 23 February 2023. That Application in a Proceeding (as sought to be filed) identified relief to be prosecuted as follows:
1.Judgment of 16 December 2022 is set aside pursuant to 10.13(1)(a),(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
BACKGROUND
The applicant is the son of Mr A Fierro (“the first respondent”). The first respondent and Ms Bien (“the second respondent”) have a child, X, born 2008, currently aged 15 (“the child”). The child has been the subject of longstanding Pt VII Family Law Act 1975 (Cth) (“the Act”) proceedings. The applicant is the paternal brother of the child.
Final consent orders regulating the parenting of the child were made on 21 May 2021 providing for the child to live with the first and second respondents and for them to have parental responsibility for her. The orders restrained the applicant from communicating with the child, otherwise as agreed in writing, or if communication was initiated by the child.
On 20 October 2021 the applicant commenced fresh proceedings seeking to revise the May 2021 consent orders. He filed an Amended Initiating Application on 6 February 2022 expanding the parenting relief he sought. Following a hearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) on 13 September 2022 orders were made dismissing the Initiating Application filed on 20 October 2021 (see Fierro & Fierro (No 4) [2022] FedCFamC1F 687). The applicant appealed the order dismissing his Initiating Application. The appeal was dismissed on 7 December 2022 (see Fierro & Fierro (No 4) [2022] FedCFamC1A 208).
On 5 December 2022, a different judge of the Federal Circuit and Family Court of Australia (Division 1) dismissed two contempt applications initiated by the applicant filed on 15 February 2022 and 17 February 2022, and a contravention application filed by the applicant filed 16 March 2022. The applicant appealed those orders. On 14 March 2023 his appeal was dismissed (see Fierro & Fierro (No 7) [2022] FedCFamC1A 24).
On 13 December 2022 a judge of the Federal Circuit and Family Court of Australia (Division 1) heard:
(a)An application in a proceeding bought by the second respondent filed 20 October 2022 for costs of the dismissed initiating application of the applicant filed 20 October 2021; and
(b)An application in the proceeding filed 24 October 2022 by the ICL for costs arising from the same subject matter.
The hearing on 13 December 2022 occurred in the absence of the applicant. Judgment was reserved to 16 December 2022. On that date this order was made:
1.Within twenty-eight (28) days, [the applicant] pay the costs of [the second respondent] 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).
As recorded earlier in these reasons it is from that order that the applicant agitates for relief pursuant to r 10.13.
The determination of the Registrar subject to review
The registrar determined that pursuant to r 2.01(3) and r 2.24 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) the Application in a Proceeding of the applicant dated 23 February 2023 did not comply with mandates contained in the rules and hence ought not to be accepted for filing.
Rule 2.24(3) provides that a party can review a decision of a registrar to reject a document for filing. Rule 14.07 provides that such an Application for Review is to be heard as an original hearing.
The review of the decision not to accept for filing the Application in a Proceeding dated 23 February 2023 was listed by the National Assessment Team for hearing before me on 21 April 2023. As recorded in the notations to the orders made on 20 March 2023, in circumstances where the review is procedural only, the Court considered it appropriate to determine the application in the absence of the parties without an oral hearing. Those orders further provided that:
1.Unless a party advises the Court by way of email to Chambers at […@...] by no later than 12 noon AEDST on Wednesday 22 March 2023 that they object, the Application for Review will be determined in the absence of the parties without an oral hearing.
2.In the event the Application for Review is to be heard in the absence of the parties without an oral hearing, each party is to file and serve by no later than 4 pm on Thursday 23 March 2023 written submissions of no more than one page in support, of or opposing, the relief sought in the Application for Review, with judgment on the Application for Review to be reserved.
None of the parties advised the Court of any objection to the applicant’s Application for Review being determined without an oral hearing.
Documents relied upon by the parties
The applicant relied upon:
(a)His Application for Review filed on 1 March 2023;
(b)His Application in a Proceeding dated 23 February 2023;
(c)His affidavit executed by the applicant on 23 February 2023; and
(d)His written submissions filed on 23 March 2023.
No documents to be relied upon were identified by either the first or the second respondent.
The Independent Children’s Lawyer (“ICL”) notified chambers by email on 23 March 2023 that she did not rely on any documents for the purposes of the hearing of the review and did not consent to the relief sought by the applicant on review.
DETERMINATION
Rule 2.01 of the Rules relevantly provides the following:
2.01 Which application form must be filed
(1) Unless otherwise provided in these Rules, a proceeding must be started by filing an application for final orders in accordance with the relevant approved form.
(2) An application for final orders may include an application for an interlocutory order.
(3) A person must not file an application for an interlocutory order unless:
(a) an application for final orders is current in the proceeding; or
(b) the application includes an application for final orders.
…
Rule 2.24 of the Rules provides a capacity of the Court to reject documents for filing in the following terms:
2.24 Rejection of documents
(1) The court may reject a document filed or received for filing if the document:
(a) is not in the proper form in accordance with these Rules; or
(b) is not executed in the way required by these Rules; or
(c) does not otherwise comply with a requirement of these Rules; or
(d) is tendered for filing after the time specified in these Rules or an order for filing the document, or is otherwise contrary to directions given; or
(e) on its face, appears to the court to be an abuse of process, frivolous, scandalous or vexatious; or
(f) is tendered for filing in connection with a current proceeding in a registry that is not the filing registry; or
(g) is filed electronically and the person filing the document has not complied with the court’s electronic filing procedures.
Note: A person who starts a proceeding by making an application for an order under Part VII of the Family Law Act must file a certificate under subsection 60I(8) of the Family Law Act with the application or an affidavit if no certificate is required because an exception applies (see rule 4.02).
(2) If a judicial officer rejects a document filed or received for filing under subrule (1), the judicial officer may give directions about any step already taken on the document, including a direction about costs.
(3) If a decision under subrule (1) is made by the court constituted by a Judicial Registrar (other than an Appeal Judicial Registrar), a person may apply for review of the Registrar’s decision under subrule (1), or directions given by the Registrar under subrule (2), by filing an Application for Review without notice.
Note:For review of an Appeal Judicial Registrar’s decision to reject a document, see rule 13.40.
Table 2.1 of the Rules specifies the approved forms to be filed pursuant to r 2.01. Item 3 of that table specifies that “interlocutory orders sought after an application for final orders is made” requires an Application in a Proceeding to be filed. Implicitly in the construction of Table 2.1 Item 3 is that such application for final orders is current.
The identified relief sought by the applicant pursuant to r 10.13 is:
10.13 Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or ….
The primary costs order subject to challenge bears all hallmarks of a final determination as to costs. As recorded earlier in these reasons, no application for final orders remains on foot. It has been dismissed. The provisions of r 2.01 and Table 2.1, Item 3 thus appear to apply, such that the applicant would be required to file an Initiating Application to progress relief pursuant to r 13.10 of the Rules.
It is to be observed that the Rules provide no general rule or direction for filing in a proceeding for relief pursuant to r 13.10 after final orders have been made or an application for final orders has been determined. There is little utility at this time in determining whether relief pursuant to r 13.10 is interlocutory or final for the purposes of this procedural review. That may be relevant on another day.
For the purposes of the determination of the application for review, I am satisfied that the determinations made by the registrar reflected one interpretation of the rules and specifically the mandate identified in r 2.01(1), made in absence of any other provision in the rules. The Application for Review will be dismissed. That, however, is not the end of the matter.
Rule 1.31 provides a broad discretion to dispense with the Rules. I am mindful on the mandates contained in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) and r 1.04 of the Rules, which set out the overarching purpose of the family law practice and procedure provisions, and require that the Court must in all proceedings before it achieve the overarching purpose. This includes the efficient use of the judicial and administrative resources available for the purposes of the Court’s business, the efficient disposal of the Court’s overall caseload and the disposal of proceedings in a timely manner at a cost that is proportionate to the importance and complexity of the matters in dispute.
Section 43 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides as follows:
43 Determination of matter completely and finally
In every matter before the Federal Circuit and Family Court of Australia (Division 1), the Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
The application of the section is obligatory and is imposed upon the Court, not the parties. The Court “must” grant such remedies so far as possible to determine matters finally and avoid a multiplicity of proceedings. The point of the section is to avoid needless litigation.
Having regard to the history of this litigation, the fact of the applicant not being represented by a legal practitioner and the apparent lacuna in the Rules recorded earlier in these reasons, I find that procedural matters ought not to operate to deflect, delay or prevent an expeditious determination of the relief sought by the applicant pursuant to r 13.10. In the circumstances, I will list the hearing of that relief in the time already allocated by the National Assessment Team to the hearing of the Application for Review that these reasons determine, being before me on 21 April 2021. This course promotes the mandates in identified sections of the FCFCOA Act and r 1.04.
The relief sought by the applicant is clear and unambiguous. He has filed his single affidavit in support of the r 13.10 relief. The first and second respondent and the ICL have not identified any prejudice arising from the applicant’s use of an incorrect court form.
So that the matter will be able to be dealt with completely on 21 April 2023, additional orders will be made:
(a)Dispensing with the Rules so as to grant the applicant leave to file on or before 29 March 2023 his Application in a Proceeding dated 23 February 2023, and his affidavit sworn 23 February 2023;
(b)Requiring the applicant to file and serve a sealed copy of each of those document on each party and the ICL before 30 March 2023;
(c)Requiring each respondent and the ICL to file and serve any Response to an Application in a Proceeding and single affidavit in support thereof on or before 12 April 2023;
(d)Requiring that the affidavits to be filed comply with the Rules; and
(e)Disallowing the parties from filing any further affidavit in relation to the applicant’s Application in a Proceeding dated 23 February 2023 without leave of the Court.
CONCLUSION
For all of the above reasons, I make orders as set out at the forefront of this judgment.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 24 March 2023
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