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 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).

EX TEMPORE
REASONS FOR JUDGMENT

MCCLELLAND DCJ:

1. In this matter, Mr Fierro, the appellant, has filed an appeal against a decision of the primary judge handed down on 16 December 2022. The primary judge made an order for indemnity costs against the appellant in favour of both respondents. Those orders were made in the absence of the appellant. The appellant filed an appeal of those orders on 12 January 2023. Subsequent to filing the Notice of Appeal, the appellant has sought to file a document seeking to re-open the proceedings before the primary judge pursuant to r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).

2. In that respect, I have regard to authorities of the Court, including Lorde & Chu [2014] FamCAFC 228 at [36] which, in turn, was cited with approval by Murphy J sitting as a single judge of the appeal division in Singam & Moffrey (2015) FLC 93-641 as follows:

   Finally, it may be useful if we take this opportunity to draw attention to the fact that it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an appeal (Wilkes and Wilkes (1981) FLC 91-060).

3. It appears to me that the appropriate course of action for the appellant to have followed in this case was to have filed his application pursuant to r 10.13(1)(a) of the Rules prior to filing his Notice of Appeal.

4. I note that the Application for Review in respect to a registrar’s decision rejecting the filing of his application pursuant to r 10.13(1)(a) of the Rules has been listed for hearing on 21 April 2023 before a judge of Division 1 of the Court. In the circumstances, having regard to the authorities to which I have referred, I adjourn the appellant's Application in an Appeal filed on 1 March 2023 for hearing until 27 April 2023.

5. I make a notation referring the parties to r 13.12 of the Rules and indicate that rule 13.12(1) 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. I draw the parties’ attention to that rule, from which they may draw their own conclusions.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       31 March 2023