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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- AGLC
- Fierro & Fierro (No 7) [2023] FedCFamC1F 190
- Case
- [2023] FedCFamC1F 190
- Decision Date
CaseChat Overview and Summary
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.
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