Fierro & Fierro (No 8) - [2023] FedCFamC1A 28

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fierro & Fierro (No 8) [2023] FedCFamC1A 28

Appeal from: Fierro & Fierro (No 6) [2022] FedCFamC1F 1006

Appeal number(s): NAA 12 of 2023

File number(s): SYC 7639 of 2021

Judgment of: MCCLELLAND DCJ

Date of judgment: 21 March 2023

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where costs orders were made in the absence of the appellant – Where the appellant appeals those orders –Application in an Appeal relates to the appellant seeking to stay the appeal proceedings until his application in the first instance proceedings pursuant to r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 is heard – Where the appellant has filed an Application for Review of a registrar’s decision rejecting the filing of the r 10.13 application – Where it would be appropriate to adjourn the appeal proceedings until after the Application for Review is heard – Application in an Appeal adjourned.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13(1)(a), 13.12

Cases cited:
Lorde & Chu [2014] FamCAFC 228

Singam & Moffrey (2015) FLC 93-641; [2015] FamCAFC 42

Number of paragraphs: 5

Date of hearing: 21 March 2023

Place: Melbourne (via videolink)

The Appellant: Litigant in person

The First Respondent: Litigant in person

The Second Respondent: Litigant in person

Solicitor for the Independent Children's Lawyer: Ms Watson, Tasmania Legal Aid
ORDERS

NAA 12 of 2023
SYC 7639 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR FIERRO

Appellant

AND:
MR A FIERRO

First Respondent

MS BIEN

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

21 MARCH 2023

THE COURT ORDERS THAT:
1.The Appellant’s Application in an Appeal filed 1 March 2023 is adjourned until 2pm on 27 April 2023 before the Honourable Deputy Chief Justice McClelland.
2.The costs of the proceedings for all parties is reserved.

THE COURT NOTES THAT:
A.The parties are referred to r 13.12(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
B.All respondents, including the Independent Children’s Lawyer, have requested that any further communication from the appellant be by way of post, rather than electronic means.
C.The appellant has declined to accede to that request.
D.The self-represented respondents respectively reserve their position in respect to any communication that is received by them, from the appellant, other than by way of post.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fierro & Fierro (No 8)

Details

AGLC: Fierro & Fierro (No 8) [2023] FedCFamC1A 28
Case: [2023] FedCFamC1A 28
Decision Date

CaseChat Overview and Summary

In this appeal, Mr Fierro, the appellant, appeals against a decision of the primary judge which made an order for indemnity costs against him in favour of both respondents. The costs orders were made in the absence of the appellant. The legal issues in this case revolve around the appellant's attempt to file a document seeking to re-open the proceedings before the primary judge under r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and whether this was the proper course of action. The court considered the relevant authorities, including Lorde & Chu [2014] FamCAFC 228 and Singam & Moffrey (2015) FLC 93-641, which suggest that the proper course of action for a party seeking to set aside orders made in their absence is to apply at first instance for a rehearing rather than seeking to have the matter dealt with via an appeal. In light of these authorities, the court adjourns the appellant's Application in an Appeal until after the Application for Review of a registrar’s decision rejecting the filing of the r 10.13 application is heard on 21 April 2023. The court also refers the parties to r 13.12 of the Rules, which states that the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision. The parties are free to draw their own conclusions from this rule. The court notes that the parties have requested that any further communication from the appellant be by way of post, rather than electronic means, a request which the appellant has declined to accede to.

The court orders that the appellant's Application in an Appeal filed on 1 March 2023 is adjourned until 2pm on 27 April 2023 before the Honourable Deputy Chief Justice McClelland. The costs of the proceedings for all parties are reserved. The court also notes that the parties are referred to r 13.12(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and that all respondents, including the Independent Children’s Lawyer, have requested that any further communication from the appellant be by way of post, rather than electronic means. The appellant has declined to accede to that request, and the self-represented respondents reserve their position in respect to any communication that is received by them, from the appellant, other than by way of post.

Orders