Fierro & Fierro (No 8)

The case of Fierro & Fierro (No 8) involves the applicant seeking to challenge a costs order made in a family law matter, claiming it was obtained by fraud. The respondents to the application are the Independent Children's Lawyer (ICL) and two parties who obtained the benefit of the costs order. The legal issues central to this case revolve around the scope and definition of fraud in the context of family law proceedings and the circumstances under which a court may set aside a final order based on fraud. Specifically, the court needed to determine whether the applicant had sufficiently demonstrated actual fraud in the common law sense, as opposed to mere constructive fraud, to warrant setting aside the costs order.

The court meticulously reviewed the applicant's evidence and submissions to assess whether the fraud alleged was of the requisite nature to justify setting aside the costs order. The court found that the applicant had not provided particulars of fraud as required by law, particularly in light of the strict onus of proof in actions based on fraud. The High Court's decision in Clone Pty Ltd v Players Pty Ltd (In Liq) was cited to clarify that actual fraud involves a meditated and intentional contrivance to deceive the court, which the applicant's allegations did not meet. The court also highlighted that the narrow scope of common law fraud does not encompass equitable fraud, lack of frankness, or other forms of misconduct that do not involve intentional deceit.

Consequently, the court refused the applicant's application to set aside the costs order, finding that the applicant had not discharged the onus of proving actual fraud in the common law sense. The applicant's allegations, though detailed, did not meet the stringent criteria established by the High Court and were therefore insufficient to justify reopening a final order. The court emphasised the importance of the finality of court judgments and orders, recognising that exceptions to this principle are rare and only permissible in exceptional circumstances, such as when an order was obtained by fraud.

The court's decision underscores the high threshold for alleging fraud in family law proceedings and the necessity for clear and convincing evidence to support such claims. The applicant's application was dismissed, and the costs order remained in place, reflecting the court's commitment to upholding the integrity and finality of its judgments.