Fierro & Fierro (No 7)

Case [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…

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Details
AGLC
Fierro & Fierro (No 7) [2023] FedCFamC1F 190
Case
[2023] FedCFamC1F 190
Decision Date

CaseChat Overview and Summary

The matter concerns the application filed by Mr Fierro, the paternal brother of a child, for a review of the refusal by a registrar of the Federal Circuit and Family Court of Australia to accept for filing an Application in a Proceeding. The application sought to set aside a judgment made on 16 December 2022. The judgment had ordered Mr Fierro to pay costs to the second respondent and the Independent Children’s Lawyer arising from a dismissed initiating application filed on 20 October 2021. The court was required to decide whether the application for review should be accepted for filing and if so, whether it met the criteria for setting aside the judgment.

The court considered whether Mr Fierro's application for review met the legal criteria for setting aside the judgment and whether it was in the best interests of the child to hear the application. The court found that Mr Fierro had not provided a valid reason for setting aside the judgment and that it was not in the best interests of the child to hear the application. The court also considered that the refusal to accept the application for filing was not an abuse of process. The court concluded that the application for review should not be accepted for filing.

The court made orders dispensing with the rules to grant Mr Fierro leave to file his application for review and his affidavit. The court also made orders requiring Mr Fierro to file and serve a sealed copy of each of those documents on each party and the Independent Children’s Lawyer before a specified date. The court further made orders requiring the respondents and the Independent Children’s Lawyer to file and serve any response to the application for review and any supporting affidavits before a specified date. The court also made orders disallowing the parties from filing any further affidavits in relation to the application for review without leave of the court. The court concluded that the orders would allow the matter to be dealt with completely on the specified date.

Orders

Orders of the court

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Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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