Fierro & Fierro (No 8)
[2023] FedCFamC1F 336
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fierro & Fierro (No 8) [2023] FedCFamC1F 336
File number: SYC 7639 of 2021 Judgment of: CAMPTON J Date of judgment: 5 May 2023 Catchwords: FAMILY LAW – JURISDICTION – Application to set aside a costs order made pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Character of relief under r 10.13 – Where the challenged order is a final perfected order of this Court – Where the applicant asserts the costs order was obtained by fraud, or in the alternative, was made in his absence – Where the applicant had the burden to prove actual fraud, in the common law sense – Where the evidence to prove fraud must be fresh or newly discovered – Relief absent evidentiary foundation – Where the applicant had notice of the hearing and elected not to participate – Where the applicant did not file documents in response to the costs application – Where the making of costs order in applicant’s absence does not reflect a lack of procedural fairness – Where the applicant has attempted to mask a collateral attack on prior parenting determinations as a challenge to a costs order – Application wholly misconceived – Costs ordered in favour of the Independent Children’s Lawyer.
FAMILY LAW – PRACTICE AND PROCEDURE – Whether special circumstances exist to permit cross-examination at interlocutory hearing – Application of r 5.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – The existence of factual disputes is not in itself an “exceptional circumstance” – Leave refused.
Legislation: Evidence Act 1905 (Cth) s 140
Family Law Act 1975 (Cth) ss 45A, 102QB, 117
Federal Circuit and Family Court of Australia (Family Law) Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Act 2021 (Cth) ch 2, 5, rr 1.04, 5.08, 5.09, 10.13
Family Law Rules 2004 (Cth) r 17.02
Cases cited: Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7
Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12
Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9
Fierro & Fierro (No 2) [2022] FedCFamC1A 114
Fierro & Fierro (No 2) [2022] FedCFamC1F 344
Fierro & Fierro (No 4) [2022] FedCFamC1A 208
Fierro & Fierro (No 4) [2022] FedCFamC1F 687
Fierro & Fierro (No 6) [2022] FedCFamC1F 1006
Fierro & Fierro (No 7) [2023] FedCFamC1A 24
Fierro & Fierro [2022] FedCFamC1A 72
Fierro v Fierro & Ors [2023] HCASL 52
Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7
Hip Foong Hong v H Neotia & Co [1918] AC 888
McDonald v McDonald (1965) 113 CLR 529; [1965] HCA 45
Patch v Ward (1867) LR 3 Ch App 203
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
Vadisanis & Vadisanis (2015) FLC 93-671; [2015] FamCAFC 180
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290
Division: Division 1 First Instance Number of paragraphs: 100 Date of hearing: 21 April 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: Ms Watson, 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:
5 May 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 28 March 2023, as amended by the Amended Application in a Proceeding filed 28 March 2023, is dismissed.
2.On or before 26 May 2023, the applicant is to pay the costs of the Independent Children’s Lawyer in the sum of $1,800.
3.On or before 15 May 2023, the second respondent is to file and serve:
(a)any Application in a Proceeding seeking an order pursuant to s 45A or s 102QB of the Family Law Act 1975 (Cth), the second respondent having leave to rely on her affidavit filed 19 April 2023 in support thereof; and
(b)written submissions (if any) of not greater than five pages in length.
4.On or before 22 May 2023, the first respondent and the Independent Children’s Lawyer are to file and serve:
(a)any Response to the second respondent’s Application in a Proceeding filed pursuant to these orders; together with
(b)a single affidavit in support thereof (if any) in compliance with the in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”); and
(c)written submissions (if any) of not greater than five pages in length; or,
(d)in the event that the Application in a Proceeding is not contested, a Submitting Notice pursuant to r 2.22 of the Rules.
5.On or before 29 May 2023, the applicant is to file and serve;
(a)any Response to the second respondent’s Application in a Proceeding filed pursuant to these orders; and
(b)a single affidavit in support thereof (if any) in compliance with the Rules; and
(c)written submissions (if any) of not greater than five pages in length.
6.Judgment in respect of the second respondent’s Application in a Proceeding, if filed pursuant to Order 3 above, shall thereafter, be reserved to chambers.
7.Save and except as provided by these orders, the parties are not permitted to file or seek to adduce into evidence any additional affidavit material or supplementary documents, and shall not be permitted absent leave to rely upon such additional material for the purposes of the determination reserved to chambers.
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 (No 8) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
Mr Fierro (“the applicant”) by way of an Application in a Proceeding dated 23 February 2023 and filed 28 March 2023 sought an order that:
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).
The determination under challenge was that of a judge of the Federal Circuit and Family Court of Australia (Division 1) (“FCFCOA Div 1”), being an order made in the absence of the applicant on 16 December 2022 as follows (“the costs order”):
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).
Mr A Fierro (“the first respondent”), Ms Bien (“the second respondent”) and the Independent Children’s Lawyer (“the ICL”) oppose the relief sought by the applicant.
For the reasons that follow, the Application in a Proceeding filed 28 March 2023 as amended by way of the Amended Application in a Proceeding filed 28 March 2023 will be dismissed. An order will be made that the applicant pay the costs of the ICL in the sum of $1,800 within 21 days.
The second respondent recorded in her affidavit filed 19 April 2023 that she sought an order that “the applicant be declared a vexatious litigant” (at paragraph 44).
As advised during the hearing on 21 April 2023, directions will be made for the second respondent to file an Application in a Proceeding identifying the terms of the order she seeks pursuant to either s 45A or s 102QB of the Family Law Act 1975 (Cth) (“the Act”), for the applicant, first respondent and ICL to file a Response to that application, if filed, and for the determination of that application and any responses thereto, to be reserved to chambers.
THE CONTEXT OF THE LITIGATION
The applicant is the son of the first respondent. The first and second respondents are the separated parents of a child, X, born 2008, currently aged 15 (“the child”).
The child has been the subject of two intensive parenting proceedings. The applicant commenced the first proceeding by filing an Initiating Application in (what was then) the Federal Circuit Court of Australia on 29 May 2020, being number PAC2535/2020. That proceeding was concluded on the making of consent orders in that court on 21 May 2021 (“the final consent orders”) as between the applicant, the first and second respondent, and the ICL.
The final consent orders provided broadly for the first and second respondents to have equal shared parental responsibility for the child, for the child to live with the first and second respondents as agreed and for communication between the applicant and the child on the following terms:
3.THAT [the applicant] be restrained from communicating with [the child] by either in person or by text message, mobile telephone, email, letter or any other form of communication unless as:-
(a)Otherwise as agreed in writing as between the parties; or
(b)If initiated by [the child].
4.THAT Any communication initiated by [the child] in accordance with order 3(b) above is only to be for a period of time whilst [the child] consents to such communication and the Applicant must cease communicating with [the child] if she requests him to do so.
5.THAT If communication is initiated by [the child] in accordance with order 3(b) and 4 then, for the period of the communication:-
(a)the [first and second respondents] must do all things necessary to facilitate [the child’s] communication with the Applicant including providing her with access to a mobile telephone with call credit at all times.
(b)the [first and second respondents] are not to interfere, prohibit, discourage or otherwise impede [the child’s] communication with the Applicant.
6. THAT the Applicant is permitted to send gifts to [the child] on special occasions, such as for Christmas and her birthday, provided that no correspondence is included in the gift other than a card stating who the gift is for and who the gift is from.
(As per the original)
By an Initiating Application filed in the Federal Circuit and Family Court of Australia (Division 2) on 20 October 2021, the applicant commenced a fresh proceeding as to parenting of the child (number SYC7639/2021) less than five months after the final consent orders. He subsequently filed an Amended Initiating Application on 6 February 2022, and a Further Amended Initiating Application on 6 April 2022. He broadly sought orders that:
(a)the final consent orders be varied or set aside;
(b)the first respondent spend supervised only time with the child (the child lived with the first and second respondents);
(c)for the first respondent to have “no parental responsibility” for the child; and
(d)for he to be permitted to visit or spend time with the child “on any weekend, school holiday or public holiday upon reasonable notice”.
The proceedings were transferred to the FCFCOA (Div 1) on 16 March 2022.
Subsequent to commencing the fresh variation proceeding, the applicant filed a number of applications, including among others:
(a)An application to discharge the appointment of the ICL. It was dismissed on 22 April 2022. The applicant appealed from the dismissal order but then discontinued the appeal on 23 May 2022. Three weeks later, he filed an Application in an Appeal seeking leave to file a fresh appeal out of time against the dismissal order. That Application in an Appeal was dismissed on 8 July 2022 given that “no appeal competently [lay] from the dismissal order” and so “it would be pointless to grant the applicant leave to bring his appeal out of time” (see Fierro & Fierro [2022] FedCFamC1A 72 at [21]).
(b)An Application in an Appeal seeking that the order refusing him leave to appeal out of time be “set aside or varied” pursuant to rr 10.12 or 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). That application was dismissed for the reason that “it [was] impossible to grant the relief envisaged by the applicant” (see Fierro & Fierro (No 2) [2022] FedCFamC1A 114 at [7]).
(c)An Application for Review of a judicial registrar’s decision to refuse the applicant’s “request for service abroad of judicial documents”, which was dismissed on 6 May 2022 on the basis that it was “wholly misconceived” (see Fierro & Fierro (No 2) [2022] FedCFamC1F 344), with an order that the applicant pay the costs of the respondent in the sum of $3,500;
(d)A contravention application, which was dismissed on 20 July 2022, subject to costs;
(e)Three contempt applications, which were each dismissed on 5 December 2022. One of those applications was dismissed with the applicant’s consent. The applicant sought to appeal the dismissal on the merits of the other two contempt applications. Although the Full Court found that the primary judge had made an error of law when dismissing the contempt counts, it nonetheless dismissed the appeal “since the dismissal orders are so plainly correct for other reasons, they should not be disturbed” (see Fierro & Fierro (No 7) [2023] FedCFamC1A 24 at [3]).
The variation proceeding came before Berman J on 22 July 2022 for case management. The applicant did not appear on that date. Having regard to the “sheer number” of court listings, and the volume of documents filed in short compass at “significant cost to the second respondent, the ICL and the public”, Berman J listed the Response of the first respondent for hearing on 19 August 2022.
The purpose of the hearing on 19 August 2022 was to determine the first respondent’s application to dismiss the applicant’s application to vary the final consent orders and therefore finally conclude that tranche of parenting proceedings. In his reasons later delivered on 13 September 2022 (see Fierro & Fierro (No 4) [2022] FedCFamC1F 687 (“the dismissal reasons”)), Berman J set out the parameters of the dispute, and the respective contentions of the applicant and first and second respondents as follows:
18It is a relevant consideration that the consent orders of 21 May 2021, do not prevent communication between the child and the applicant but rather makes that communication conditional upon it being initiated by the child and then for only so long as the child may seek to do so.
19It is also conceded by the applicant, that at present, the child is highly resistant to either communicating with him (or his nephew…) and remains opposed to physical contact with either of them.
20The parties are not agreed as to the reason why the child rejects the applicant’s overtures.
21For his part, the applicant contends that the child’s refusal to engage with him is as a result of a campaign to promote the child’s alienation from any relationship with either the applicant or [his nephew]. The first and second respondent and the ICL contend that the applicant has little, or no relationship, with the child and that the proceedings brought by him in both the current proceedings, but also those involving his sister and her children as well as his support of [his nephew’s] now dismissed Initiating Application, is vexatious and designed to cause financial and emotional distress to the first and second respondents.
The dismissal reasons further record at [50] that for the purpose of the hearing before him on 19 August 2022, the applicant acknowledged that he was required to demonstrate “a substantial change, a relevant new circumstance or sufficiently weighty new facts” to progress his variation application. Importantly, Berman J recorded that central to the applicant’s case on that issue was the existence of “contempt/fraud/child abuse by they [first and second] respondents in obtaining the [final consent] orders”.
Following the hearing on 19 August 2022, Berman J made orders on 13 September 2022 dismissing the applicant’s Initiating Application filed 20 October 2021. The dismissal reasons record that:
85The rule in Rice & Asplund (supra) requires a high threshold before a Court can consider that a child should be subject to further litigation. The subject child has been mired in litigation. In circumstances where I consider the integrity of the consent final orders not to be an issue and the strong submission of the ICL that it would not be in the child’s interest for the applicant’s proceedings to be enlivened in the absence of merit, the applicant’s Initiating Application should be struck out.
On 10 October 2022, each of the second respondent and the ICL filed an Application in a Proceeding seeking that the applicant pay their costs of and incidental to the Initiating Application on 20 October 2021 and amendments thereto (“the costs applications”).
On 20 October 2022, the costs applications of the second respondent and the ICL were set down for hearing by Microsoft Teams at 9.00 am on 13 December 2022. The Court provided the parties a link for that Microsoft Teams hearing on 12 December 2022, permitting them to attend the hearing electronically.
Those costs applications were heard by Berman J on 13 December 2022. The applicant did not participate on that date.
On 16 December 2022 Berman J delivered reasons for judgment (see Fierro & Fierro (No 6) [2022] FedCFamC1F 1006 (“the costs reasons”)) and made the costs order against the applicant as recorded at [2] above.
It is important to recognise that the applicant’s current challenge is not to dismissal determination of Berman J on 13 September 2022. That determination was the subject of an unsuccessful appeal to the Full Court (see Fierro & Fierro (No 4) [2022] FedCFamC1A 208). The applicant sought leave to extend the time in which to seek special leave to appeal from that judgment to the High Court. That leave was refused (Fierro v Fierro & Ors [2023] HCASL 52) on 13 April 2023. In doing so, the High Court considered that “there is no reason to doubt the correctness of the Full Court’s decision”.
This current challenge is restricted to the costs determination made on 16 December 2022. That said, on 12 January 2023 the applicant filed a Notice of Appeal to the Full Court from the costs orders made by Berman J. The appeal hearing was listed on 4 May 2023. It was vacated in circumstances where the appellant filed an Application in an Appeal seeking a stay of the appeal proceedings pending this determination. That Application in an Appeal and the appeal itself are now listed to be heard on 2 June 2023.
HISTORY OF THIS APPLICATION
On 24 March 2023, orders were made permitting the applicant leave to file his Application in a Proceeding dated 23 February 2023 and his affidavit sworn on 23 February 2023, and listing that application for hearing before me on 21 April 2023. By way of that Application in a Proceeding the applicant sought a singular order that:
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).
The applicant, subsequent to the orders made on 24 March 2023, filed the Application in a Proceeding on 28 March 2023. Notwithstanding the terms of the leave granted to file the specified Application in a Proceeding, the applicant also filed on that date a “Further Amended Application in a Proceeding” seeking, in addition to the order identified in the Application in a Proceeding dated 23 February 2021, four other orders that had not formed part of the relief initially sought, being:
2.Order for cross examination of the first and second respondent at hearing of 21 April 2023.
3.Order for cross examination of the children’s lawyer at hearing of 21 April 2023.
4.Leave to rely upon the applicant’s affidavit of 20 February 2022 and attendant exhibits (mailed to court on 20 February 2023 in full court appeal proceedings NAA12/2023).
5.Leave to rely upon the 7 audio files (mailed to court on 20 February 2023 in full court appeal proceedings NAA12/2023).
(As per the original)
PRELIMINARY ISSUES AS TO THE DETERMINATION OF THIS APPLICATION
The character of the relief sought pursuant to r 10.13
The Rules differentiate between the procedures applicable to the hearing of interlocutory and final relief. Chapter 2 of the Rules regulates the processes and time limitations that apply to the amendment of both final and interlocutory relief. Chapter 5 of the Rules specify restrictions in the conduct of hearings of relief for interlocutory relief, being:
(a)The number and contents of affidavits to be relied upon to one by each witness (r 5.08); and
(b)That cross examination will only be allowed in exceptional circumstances (r 5.09(2)).
As canvassed with the parties during the hearing, so as to ascertain which procedures are applicable to the hearing of this application, it is first important to identify whether the relief sought by the applicant pursuant to r 10.13 of the Rules is final or interlocutory.
The applicant contended that the relief sought is interlocutory in character. He could not make any submissions supporting his contention. The first and second respondents and the ICL expressed no position on this matter.
The relief prosecuted by the applicant (by way of r 10.13) concerns the power of this Court at first instance to set aside its own judgment as to costs made 16 December 2022, on the basis that the judgment was obtained in the absence of the applicant or on the basis that it was obtained by fraud.
It was determined during the course of the hearing that the relief sought by the applicant pursuant to r 10.13 was interlocutory. The High Court in Bienstein v Bienstein (2003) 195 ALR 225 (at [25] per McHugh, Kirby & Callinan JJ) held that a judgment or order is not final where “the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success”. That is the circumstance here. A determination of the current application does not finally deal with the rights of the applicant or dispose of the justiciable dispute.
Accordingly, ch 2 and ch 5 of the Rules apply to this determination.
The applicant’s Amended Application in a Proceeding filed 28 March 2023
The applicant contended that leave was not required for him to amend his relief sought in terms of his Amended Application in a Proceeding filed 28 March 2023.
The ICL said that the applicant did not require leave to file and rely upon his Amended Application in a Proceeding filed 28 March 2023. She accepted that she had been served the Amended Application in a Proceeding on or about the date it was filed, being more than three weeks prior to the hearing.
The first and second respondents were uncertain if, or when, they had been served with the Amended Application in a Proceeding filed 28 March 2023. Neither contended they could not meet the relief sought in the Amended Application in a Proceeding filed 28 March 2023. It was the first and second respondents’ submission that the applicant was “abusing the court system”. They each made complaint as to applicant besieging them with thousands of pages of documents over the course of the litigation, including having filed over 150 court documents. Each of the first and second respondents opposed leave being granted (if required) to the applicant to rely upon his Amended Application in a Proceeding filed 28 March 2023.
Rule 2.50 prescribes that:
(1) A party who has filed an application or response may amend the application or response:
(b) for an Application in a Proceeding:
(i) at or before the first court date;…
The first court date is defined in the Rules as being “the first hearing or other court event after an application or an appeal is filed (including a conference or procedural hearing)” (r 1.05). Pursuant to the orders made on 24 March 2023, the applicant was to file his Application in a Proceeding dated 23 February 2023 on or before 30 March 2023. He did so on 28 March 2023. The hearing on 21 April 2023 was therefore the first court date of the Application in a Proceeding dated 23 February 2023 as filed 28 March 2023. Hence, the amendment by the applicant, as also filed 28 March 2023, complied with the Rules, as was determined during the course of the hearing.
In the event that conclusion is in error, it would be appropriate to dispense with the Rules so as to grant leave for the applicant to amend his interlocutory relief. The Application in a Proceeding and the Amended Application in a Proceeding were filed on the same day, 24 days before the listed hearing. Neither the first respondent nor the second respondent identified that they would encounter a material prejudice if the amendment was allowed such that the Amended Application in a Proceeding filed 28 March 2023 was heard and determined on 21 April 2023.
Leave sought by the applicant to rely on a second affidavit
In addition to relying on his affidavit filed on 23 February 2023 (“the applicant’s first affidavit”), the applicant sought to rely on his affidavit sworn on 20 February 2023 and filed on 22 February 2023 in the appellate proceedings NAA 12/2023 (“the applicant’s appellate affidavit”).
The applicant accepted that leave was required to rely on two affidavits from the same witness by application of r 5.08(1) of the Rules.
The applicant submitted that his appellate affidavit was relevant to his contention as to fraud for the purpose of this application, in that it:
(a)Illustrated the “grand scale” of the fraud occasioned by the first and second respondents;
(b)Established that the benefit of the costs order in favour of the second respondent was obtained by fraud; and
(c)Responded to the second respondent’s affidavit filed on 10 October 2022, relied upon by Berman J for the purposes of the costs determination and orders made on 16 December 2023; and
(d)Was the “primary and essential” affidavit as to fraud.
Broadly the applicant said it was in the interests of justice to permit him leave to rely on this second affidavit.
The first and second respondents each opposed the applicant relying on his appellate affidavit, implicitly for similar reasons to those identified at [33]. The ICL also opposed the applicant relying on the appellate affidavit, submitting that the orders made on 24 March 2023 were clear in their terms and effect as to the material that each party was permitted to rely upon for this determination. She contended that the applicant’s conduct in haphazardly sending a number of exhibits to the Court not in the ordinary course of filing ought not be endorsed. That said, she accepted that she was aware of the contents of the body of the husband’s appellate affidavit.
It was determined that the applicant ought to have leave to rely on both his first affidavit (filed on 23 February 2023 in these proceedings) and his appellate affidavit (filed on 22 February 2023 in the appellate proceedings).
The application to cross-examine each respondent and the ICL
The applicant sought to cross-examine the first and second respondents and the ICL at the hearing on 21 April 2023. This was opposed by the ICL, who contended that the proposed cross-examination would have little utility if any and would be contrary to both the interests of justice and public policy. It was also opposed by the first and second respondent.
During the hearing, the application to cross-examine was refused in circumstances where the applicant failed to demonstrate “exceptional circumstances” for it to be allowed. The reasons for doing so are as follows.
Rule 5.09, applicable to the hearing of interlocutory applications, records:
(1) Unless the court directs otherwise, the hearing of an application for interlocutory orders must be no longer than 2 hours.
(2) Cross‑examination will be allowed at a hearing only in exceptional circumstances.
The concept of “exceptional circumstances” is not unique. It appears across a range of jurisdictions. Principles applicable to similar rules make it clear that there is no all‑encompassing definition of exception circumstances (Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290 at [66]).
Ascribing meaning to “exceptional circumstances” for the purpose of r 5.09(2) of the Rules requires an assessment of the rule taken as a whole, and of its rationale. That process obliges the Court to bear in mind the explicit statement of the overarching purpose of the Rules as contained in r 1.04, which imports s 67 of the Federal Circuit and Family Court of Australia (Family Law) Act 2021 (Cth) (“the FCFCOA Act”), being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
The clear purpose of the rule is to ensure interlocutory hearings are conducted in a way that is proportionate to the importance and complexity of the dispute, and that ensures the efficient use of judicial and administrative resources available to the Court. There will be some circumstances in which the resolution of an interlocutory application will be assisted by the cross-examination of a material witness, such that the significant departure from the normal practice of this Court is warranted. Those circumstances must be more than routine or regular, but need not be unique.
The applicant said that he sought to ask the ICL “why she backed [the first and second respondents]”, but otherwise made no submission as to the nature or content of the oral evidence sought to be adduced from the ICL. This is plainly not an exceptional circumstance. It is little more than a general query.
Although the applicant contended that his appellate affidavit “established the fraud” in and of itself, he said he proposed to cross-examine:
(a)The second respondent as to fact of and the content of the assertions made in her “restraint application” filed in the Magistrates Court in mid-2022. That application was concluded by the applicant agreeing to the entry of an order restraining his conduct in late 2022;
(b)The second respondent as to as to paragraph 15 of her affidavit filed 10 October 2022, including excerpts of email communication from the applicant between May and July 2022. He did not identify a reason when he could not tender the documents identified in the paragraph, couple them with other documents by way of tender, and make submissions as to same; or why he could not put his version of paragraph 15 in his affidavit;
(c)The second respondent as to her affidavit read in these proceedings filed 19 April 2023. The evidence contained therein is almost wholly relevant to the proposed application for orders pursuant to s 45A or s 102QB of the Act – not as to the costs determination made 16 December 2022;
(d)Both the first and second respondents as to prior inconsistent statements they made “over a period of many years”, well prior to the commencement of the litigation. This and the subsequent vein of evidence (in (e) below) were not apparently relevant to the current application;
(e)The first respondent, as to:
(i)“death threats” and other threats allegedly made by the first respondent to the applicant;
(ii)the nature of the first respondent’s relationship with his own father (the child’s paternal grandfather), and the first respondent’s relationship with the second respondent;
(iii)the criminal convictions entered (presumably against the first respondent) in Country G;
(iv)a series of call logs; and
(v)a raft of other long-standing historical complaints, including allegations as to sexual assault and advising the child as to those allegations.
The applicant firmly asserted that his appellate affidavit relied upon with leave contained the “primary and essential” evidence of fraud. He did not say why he required further oral evidence beyond what was in that affidavit to establish his allegation of fraud.
It is not unusual in an interlocutory hearing that evidence involving factual issues are contested. That factual disputes exist is not itself an “exceptional circumstance” for the purpose of r 5.09(2).
Even on his own case, the applicant merely speculated that he might be able to achieve something from the cross-examination of the first and second respondents and the ICL that may assist his case. To allow the cross-examination proposed would be to endorse a fishing expedition, without any suggestion that there was anything of substance to discover or catch. That process of fishing is not an exceptional circumstance for the purposes of the rule; the rule exists to ensure that very circumstance is avoided.
The exercise of cross-examining the first and second respondents and the ICL on the subject matters proposed by the applicant would have consumed many hours (if not days) of the Court’s time and resources. It would have unreasonably delayed the determination of this matter, in a manner that was contrary to the rationale for r 5.09 of the Rules, and to the mandates contained in r 1.04 of the Rules and s 67 of the FCFOCA Act. The applicant did not establish that the court would be greatly assisted by the cross-examination.
For those reasons, the applicant’s application for leave to cross-examine the ICL and the first and second respondents at the hearing was refused, and paragraphs 2 and 3 of the Amended Application in a Proceeding filed 28 March 2023 were dismissed.
THE EVIDENCE
The applicant relied upon the following documents:
(f)His Amended Application in a Proceeding filed 28 March 2023;
(g)His affidavit filed 23 February 2023;
(h)His affidavit filed 22 February 2022 in the appeal proceedings number NAA12/2023, and the annexures thereto;
(i)Seven digital audio files referred to in his affidavit filed on 22 February 2023 in the appeal proceedings number NAA12/2023 (Exhibit 2);
(j)His 40-page tender bundle (Exhibit 3). This included the costs affidavit of the second respondent filed on 10 October 2022; and
(k)An email from the applicant’s barrister dated 14 November 2022 (Exhibit 6).
The first respondent did not rely on any documents.
The second respondent relied upon the following documents:
(a)Her Response to an Application in a Proceeding filed 14 April 2023; and
(b)Her Affidavit filed 14 April 2023.
The ICL relied upon the following documents:
(a)Her Response to an Application in a Proceeding filed 14 April 2023;
(b)Her Affidavit filed 20 April 2023;
(c)Outline of case document filed 18 April 2023 (Exhibit 4); and
(d)Costs notice filed 14 April 2023 (Exhibit 5).
THE LAW AND CONSIDERATION
Rule 10.13 of the Rules provides as follows:
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…
This rule is the successor to the formerly applicable r 17.02 of the Family Law Rules 2004 (Cth) (“the old rules”). Rule 10.13 of the Rules and r 17.02 of the old rules exactly mirror the other. The rule does not prescribe a time limitation as to when the application to vary or set aside is to be made. Different considerations apply dependant on the foundation of the challenge pursuant to the rule.
Relief grounded from fraud to set aside the judgment of 16 December 2022 pursuant to r 10.13(1)(b)
The costs order made on 16 December 2022 was a perfected final order of this Court. A high value is placed on the finality of court judgments and orders. It has been long established that when a proceeding has been finally disposed of, a court as a general rule has no inherent power to reopen the case on an application made after the final order has been made (see for example, Gamser v Nominal Defendant (1977) 136 CLR 145 at 153). Exceptions to that rule are few and far between and arise in only the most exceptional circumstances, including where the order was made in breach of a fundamental principle of natural justice.
Fraud goes to the heart of the administration of justice within the judicial process. It is therefore a “tolerable” exception to finality, in that it is inconsistent with the Court’s character in administering justice. It has therefore been recognised that it is within this Court’s powers to set aside its own orders obtained by fraud (as articulated in r 10.13(2), and considered by the Full Court in Vadisanis & Vadisanis (2015) FLC 93-671 at [31]–[39]).
In Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165 (“Clone v Players”), the High Court described the scope of this power as “significantly circumscribed” (at [52]) in that it is contingent on proof of actual fraud in the common law sense (at [54]). So that it is clear, what is commonly understood by the lay person as fraudulent conduct is not the same thing as obtaining a judgment by fraud. Rather, what is required to be shown is:
55.…actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance. Mere constructive fraud not originating in actual contrivance, but consisting of acts tending possibly to deceive or mislead without any such intention or contrivance, would probably not be sufficient…
(Clone v Players at [55], citing Patch v Ward (1867) LR 3 Ch App 203)
(Emphasis added)
Although this application is made pursuant to r 10.13(b), there is nothing in that rule to suggest that the discretion thereby conferred is to be exercised on a different basis from that applicable in the case of implied (or inherent) jurisdiction as discussed by the High Court in Clone v Players.
The narrow scope of common law fraud does not extend to misconduct, accident, surprise or mistake. It does not extend to equitable fraud, lack of frankness or conducting a proceeding with an ulterior motive. Except in very exceptional cases, it does not extend to fraud by perjury of a witness or witnesses acting in concert (see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [16]).
The contended fraud must have “tainted and affected” the previous proceedings (See Hip Foong Hong v H Neotia & Co [1918] AC 888, cited with approval in McDonald v McDonald (1965) 113 CLR 529). A judgment will only be affected by fraud if the fraud is “material” (Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (“Wentworth v Rogers”).
The applicant therefore carries the onus of proof of:
(a)Establishing the existence of fraud on the Court; and
(b)Of the materiality of the fraud in procuring the determination under challenge.
As in all actions based on fraud, particulars of the fraud claimed must be exactly given and, given the seriousness of the allegation, must be established by a strict application of the onus of proof set out at s 140(2) of the Evidence Act 1995 (Cth).
The applicant said his relief as to the costs order made benefiting the ICL was restricted to that identified in r 10.13(1)(a) and that he “had never alleged fraud by the ICL”. He contended that the relevant fraud was occasioned by both the first and second respondents, notwithstanding that only the second respondent had obtained the benefit of the costs order.
It is a fundamental rule of natural justice that when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he or she is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. As a matter of fairness, the applicant was required to provide particulars of the fraud contended to be occasioned by the first and second respondents. During submissions, he particularised five grounds of fraud, being that:
(a)The first and second respondents conveyed to Berman J that the applicant was a threat to the child and to each of them; and
(b)The first and second respondents conveyed to Berman J that the applicant was a stranger to the child and each of them; and
(c)The first and second respondents conveyed to the Berman J that each of them, and the child wanted nothing further to do with the applicant, this being “a fiction created by my father”. As to this particular, the applicant accepted that this was currently “the reality” but says that it was a circumstance that was “created for the trial”; and
(d)The second respondent was fraudulent in obtaining the “second apprehended violence order” in mid-2022, in the Magistrates Court; and
(e)The first respondent had “hijacked everything since [the second respondent] ceased to have her own solicitor” in that he had drafted the second respondent’s affidavits, and that the litigation was “driven by [the first respondent]”.
It is readily apparent that the particulars of the alleged fraud were:
(a)Considered by Berman J in his dismissal determination of 13 September 2022 as identified in [14] and [15] above, including as to not dissimilar fraud allegations, to which the applicant’s appellate challenges have been unsuccessful and exhausted; and
(b)At their highest, if established on the evidence, were of the character of conduct identified in [65] above, such that the requisite fraud in the sense identified in Clone v Players is not achieved.
The applicant said that the relevant paragraphs of the determination costs reasons to which the particulars of the alleged fraud had application were as follows:
19.I accept the evidence of the second respondent as set out in paragraph 15 of her affidavit of 10 October 2022. This would provide a foundation for a finding that the applicant has engaged in threatening and abuse behaviour.
…
23.I have indicated that I consider the manner in which the applicant has conducted the litigation to amount to an abuse of process but in any event, to have been motivated by an intention to create financial and emotional hardship for the respondents.
…
29.For her part, the ICL submits that the applicant has been wholly unsuccessful in the proceedings, that her letter of 16 June 2022 should be considered as an offer in writing to the applicant and finally that the applicant’s conduct, in terms of his threatening behaviour and the unrelenting pursuit of applications without merit, should invite an order for costs. I find there is merit in the submissions of the ICL and those of the second respondent.
…
32.Moreover, the abusive and threatening conduct of the applicant is a matter that the Court can bring to account under s 117(2A)(g) being a relevant consideration.
…
37.Whilst I do not consider that the matters before the Court were of significant complexity, the applicant’s Amended Initiating Application was forlorn of hope and likely to represent an abuse of process given that its intention was to cause financial harm to the second respondent and, by way of collateral damage, the ICL.
The identified paragraphs of the reasons do not comfortably correlate with the particulars of the fraud alleged by the applicant.
Taking the applicant’s particulars at their highest, the focus of the complaint was that the second respondent had indirectly procured by fraud the dismissal of his variation application on 23 September 2022. At least the first four of the particulars (as recorded in [71(a)–(d)] above) were made on this basis. This does not go directly (as identified in Clone v Players) to any fraud procuring the costs determination.
The applicant’s first affidavit did not give evidence grounding fraud. By way of broad summary, the evidence in his appellate affidavit was as to:
·The litigation history of the various proceedings conducted by the applicant in this Court and other courts;
·The history of the applicant’s relationship with the second respondent (between 2017 and 13 February 2022), including representations apparently made by the second respondent that she would financially contribute towards the applicant;
·The deterioration of the applicant’s relationship with the first and second respondents in the years leading up to 2022;
·Email correspondence between himself and the second respondent between May 2022 and July 2022, as recorded at paragraph 15 of her affidavit filed on 10 October 2022;
·Scandalous assertions that the first respondent has occasioned emotional or psychological abuse on the child, that he is “a prima facie child abuse convicted criminal”, and that the first respondent had “viciously [sexually assaulted]” the second respondent disclosed in 2020 (which he said the second respondent at first accepted and later denied);
·Allegations that the applicant’s brother (who is also a biological child of the first respondent) was “forcibly removed” from the first respondent’s care in Country G many years before this litigation commenced;
·Assertions that the child was self-harming in mid-2022; and
·Conversations between the applicant and the second respondent’s brother, between September and November 2022 which were recorded by the applicant (Exhibit 2) and transcribed.
Save and except for the audio recordings and the contention as to the independence of the second respondent’s evidence, the identified facts grounding fraud relate to events which occurred prior to Berman J’s dismissal of the applicant’s Initiating Application on 13 September 2022. Many took place before the final consent orders made on 21 May 2021.
The issue that confronts the applicant is that to establish the necessary fraud, he was not permitted to prove his contentions by a relitigation of the matters canvassed at the hearing before Berman J concluded by the dismissal determination. Rather, he was required to adduce evidence “fresh” or “newly discovered” evidence to establish fraud in the sense identified in Clone v Players (see Wentworth v Rodgers at 540). As recorded, the evidence relied upon by the applicant (albeit that it contained little apparent relevance to the conclusions he asked the Court to draw) was all evidence that was available when both the dismissal application and the costs applications were considered by Berman J. The applicant confirmed in submissions that some of the evidence relied upon had been available to him for “years”.
The audio recordings (Exhibit 2) are purportedly telephone conversations between the applicant and the second respondent’s brother. The second respondent asserted that her brother was being recorded by the applicant without notice and or consent. Putting aside the question of whether the recordings were improperly obtained, they are at best unsworn statements of a potential witness. There is an absence of context to the recordings. Each of these matters significantly reduce the weight to be attributed to Exhibit 2.
At their highest, the recordings do not easily correlate with other aspects of the affidavit and documentary evidence. The applicant did not explain how they supported the findings he sought as to fraud as particularised at [71] above, or how they would rationally affect the determination of this application. I find that the recordings had little (if any) probative value to the issue of whether the costs order was obtained by fraud.
The applicant submitted that the making of costs order was grounded from the second respondent’s affidavit filed on 10 October 2022 and that the first respondent is puppeteering the second respondent such that her sworn evidence in that affidavit was not her own. The contention was wholly speculative basis and unsupported by evidence. It is rejected.
The underlying tenant of the costs judgment was that the applicant was wholly unsuccessful in his attempt to vary the final consent orders, and that the manner in which he conducted the litigation was “forlorn of hope and likely to represent an abuse of process”. Even if the applicant had been successful in relation to the various factual issues as to fraud as he contended, the costs judgment does not reflect reliance on the matters said to ground such fraud.
The applicant has not adduced evidence to establish actual fraud in the necessary sense described in Clone v Players at [55] to ground relief pursuant to r 10.13(1)(b). That claim fails.
Relief grounded from the applicant’s absence to set aside the judgment of 16 December 2022 pursuant to r 10.13(1)(a)
The discretion of the Court to set aside orders made in the absence of a party is a corollary to the requirement that, before being adversely affected by a judicial order, a person must be afforded an adequate opportunity to be heard (Taylor v Taylor (1979) 143 CLR 1 (“Taylor”) at 4). Likewise in the case of fraud, this ground is an exception to the principle of finality, whose acceptability arises in circumstances where there has been “a failure to observe an essential requirement of natural justice” (Taylor at 7). It is a discretion to be exercised with caution.
As was recognised by the Full Court in Cooke & Morton (2018) FLC 93-820 (at [35]), not every departure from the rules of natural justice will entitle an aggrieved party (here, the applicant) to a variation or setting aside of the orders under complaint. The rules of natural justice are flexible in their content and application, requiring fairness to all parties in the circumstances of a particular case. All of the relevant circumstances and context to an order having been made in the absence of a party must therefore be considered in deciding whether to set aside or vary that order r 10.13(1)(a), including without being exhaustive:
(a)the reason proffered for the non-appearance of the party in question;
(b)any prejudice to the other party which could not be adequately compensated for by an order for costs; and
(c)whether there appears to be a real issue to be tried on the merits.
The costs reasons record the Court’s satisfaction that the applicant had proper notice of the fact and content of the costs applications, the evidence in support thereof, and the date and time of the Microsoft Teams hearing at which time those applications were to be heard and determined (at [14]). Those findings were not disputed by the applicant. They were reinforced by the affidavit of the ICL filed on 20 April 2023, which recorded that the applicant had been served with the costs applications more than two months prior to the listing date and that he had been notified by both the second respondent and the Court of the listing on 13 December 2022 and provided a Microsoft Teams link so that he would be permitted to attend the listing electronically.
The applicant accepted that he had knowledge of the hearing on 13 December 2023 and he elected not to attend. The reasons he gave for that election were recorded in his first affidavit as follows:
2. [In late] 2022, the same date as the hearing of the costs application was [the second respondent’s] fraudulent and abusive Restraint Application no. … hearing which I attended unprepared without the benefit of my barrister. My barrister advised he could not act for me in the restraint application matter given a medical condition and a waiting list for […] surgery however he gave me ample notice of this but I was nonetheless extremely busy protecting [the child].
3.[In late] 2022, I was unprepared for the Restraint Hearing and extremely busy with the other more important High Court proceedings for the care and protection of [the child] (who [the second respondent] had maliciously placed as a person in need of protection in her fraudulent and abusive application) so I was unable to attend the costs application hearing.
…
10. Given the costs application was listed on the same date as the restraint application, and the insufficient time to prepare and attend both, the applicant seeks the matter is reopened and the judgment set-aside in accordance with
rule 36.16(2)(b) UCPR. being made in my absence.(As per the original)
In her affidavit filed on 20 April 2023, the ICL deposed that to the best of her knowledge, the applicant did not raise concern as to the date of the costs listing in late 2022 nor did he seek an adjournment of that listing.
The applicant’s assertions about his difficulties in appearing for the purposes of the costs hearing in late 2022 must be seen in the context of:
(a)The applicant having notice of the listing since at least 25 October 2022, being seven weeks prior to the listing;
(b)The applicant failing to file any material in response to the cost applications, notwithstanding that he had the opportunity to do so, including when he obtained advice from his NSW barrister during November 2022 (as confirmed in Exhibit 6);
(c)The absence of any application being made by the applicant to vacate or adjourn the listing; and
(d)The fact that the listing was conducted by Microsoft Teams, so that the applicant had a capacity to participate electronically or instruct a legal representative to appear on his behalf.
It would, therefore, be an error to interpret the applicant’s affidavit evidence as conveying that he did not have sufficient notice of the cost’s applications or their listing in late 2022. In reality, the applicant was afforded the opportunity to be heard on the costs matter (including by filing relevant material and participating in the listing) and he elected not to do so. His decision to “prioritise” the state litigation and the “more important” High Court special leave application was entirely his own. It does not reflect an absence of procedural fairness having been afforded to him on the part of the Court or the other parties to the proceedings.
The applicant adduced no evidence nor made any compelling submission to suggest that had he been present at the hearing of the costs application in late 2022, a different outcome to the costs order made on 16 December 2022 would have resulted. In this regard, the applicant:
(a)Did not adduce relevant evidence to challenge Berman J’s finding that there were circumstances justifying an award of costs;
(b)Did not adduce evidence to establish that a different order would be possibly made pursuant to s 117 of the Act, in the event the costs applications were reheard. In this regard, he did not identify evidence as to his relevant financial circumstances, and made no submissions as to those of the second respondent;
(c)Did not engage with long established principle that no one factor under s 117(2A) of the Act prevails over any of the other factors to ground a discretion to order costs or that it is a matter of weight that is accorded to each of the relevant factors in the judge’s broad discretion to constitute the justifying circumstance to order costs. Importantly, he did not engage with the uncontroversial fact of his application being wholly unsuccessful, misconceived and occasioning an abuse of process. He did not put into issue the quantification of the costs order as determined by Berman J.
Again, most of the applicant’s submissions and evidence relied upon were largely irrelevant to the costs determination. They did not illuminate any material s 117(2A) factor in his favour.
On a consideration of the whole of the relevant circumstances and the history of this matter, including the need for an end to litigation, the absence of probative reasons proffered for the non-appearance of the applicant and where there appears to be no real issue or alternate merit to any s 117(2A) factor, I am not satisfied that discretion ought to be exercised to vary or set aside the perfected costs order made on 16 December 2022. The evidence does not ground relief pursuant to r 10.13(1)(a). That claim also fails.
CONCLUSION
The Amended Application in a Proceeding filed 28 March 2023 was in reality an attempt to re-litigate the issues which were determined by Berman J when he dismissed the applicant’s application to vary the final consent parenting orders, the subsequent determination of the Full Court dismissing his appeal and upholding Berman J’s determination, and the High Court’s refusal to extend the time for him to seek special leave to appeal the Full Court’s determination.
Having exhausted the appellate litigation pathway, the applicant now seeks to mask a collateral attack on those determinations as a challenge to a costs order. He submitted with blinkered conviction that the child was in “danger” (although he did not explain why then he had agreed to the final consent orders), and said that he would “file another thousand applications if [he] need[s] to”. His objective was plainly to achieve a redetermination of the issues already conclusively decided.
As has been recorded in these reasons, his current challenges bore very little connection to the costs determination. The application in a proceeding as amended was entirely misconceived. It will be dismissed.
Costs
There was no application for costs made by the first or second respondents in circumstances where they appeared absent legal representation.
The ICL sought that her costs of and incidental to the applicant’s application to set aside the costs order be paid by the applicant in the sum of $1,800, in accordance with her costs notice filed on 14 April 2023 (Exhibit 5). She submitted absent objection that those costs were in accordance with the scale of costs in schedule 3 of the Rules.
There is no evidence as to the applicant’s financial circumstances. He elected not to disclose this evidence. His application was wholly unsuccessful. It had no merit. The applicant had capacity to seek advice from counsel. Properly advised, he ought not to have made his application to set aside the costs order on the grounds or upon the evidence relied upon. The expenditure by the ICL of scarce public funds was necessary to defend a meritless an application to set aside a costs order achieved by the ICL. Applications of this character should not receive a modicum of encouragement.
The circumstances justify the making of a costs order in favour of the ICL in the amount sought. I am satisfied such an order is just. It is warranted.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 4 May 2023
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