Fierro & Bien
[2025] FedCFamC1F 261
•24 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fierro & Bien [2025] FedCFamC1F 261
File number: HBC 395 of 2024 Judgment of: MCGUIRE J Date of judgment: 24 April 2025 Catchwords: FAMILY LAW – PARENTING - Application to set aside orders made in the applicant’s absence – Where it was found that the applicant did not have an adequate explanation for his failure to participate in the proceedings – Where the Court was not satisfied that different orders would have been made if the applicant had appeared or presented his case in the proceedings – Application dismissed Cases cited: Allesch v Maunz (2000) 203 CLR 172
Barbey & Tuttle [2013] FamCAFC 44
Clifford & Mountford [2006] FMCAfam 450
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Pagliarilla & Pagliarilla (1993) FLC 92-400
Rice v Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 55 Date of hearing: 4 April 2025 Place: Hobart and delivered in Melbourne Solicitor for the applicant: In person Solicitor for the first respondent: In person Solicitor for the second respondent: In person Counsel for the Independent Children’s Lawyer: Mrs K Mooney S.C. Solicitor for the Independent Children’s Lawyer: Legal Aid Commission of Tasmania ORDERS
HBC 395 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIERRO
Applicant
AND: MS BIEN
First Respondent
MR A FIERRO
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
24 APRIL 2025
THE COURT ORDERS THAT:
The application of Mr Fierro dated 18 March 2025 be dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 of Fierro & Bien has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
The applicant, Mr Fierro, makes application for orders made 15 March 2025 setting aside his interlocutory application for non-appearance. The application is made pursuant to rule 10.1(3)(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The relevant application was an interlocutory application by Mr Fierro seeking orders for the discharge of the Independent Children’s Lawyer (“ICL”).
The application is opposed by the ICL and the first and second respondents.
RELEVANT LAW
The approach to such applications is well settled in determining whether or not vary or set aside orders.[1] The relevant considerations are:
(a)the reason for the party’s non–appearance and whether that explanation is reasonable;
(b)whether there is a reasonable explanation for the applicant’s absence at the trial or hearing;
(c)material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
(d)there being no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
[1] Barbey & Tuttle [2013] FamCAFC 44 Clifford & Mountford [2006] FMCAfam 450.
Matters relevant to the three criteria set out above include but are not to limited to:
(a)whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
(b)the delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgement, or third parties have acquired rights by reference to it; and
(c)the conduct of the applicant since the judgement or orders sought to be set aside was made.
BACKGROUND
It is of assistance for the relevant background facts to be included in these reasons so as to give context to the interlocutory application and this application and with particular reference to the requirement as to whether there are arguments to be advanced that might reasonably lead to the making of different orders.
The applicant is the applicant in substantive proceedings seeking orders for contact/communication with his half-sister, X born 2008 (aged 17 years). The applicant has filed various amended applications including at times seeking orders for the child to be removed from her parents.
The first respondent, Mr A Fierro, is the father of both the applicant and X. The second respondent, Ms Bien, is the mother of X but not the mother of the applicant.
The records show that the current application is the third substantive Family Law proceedings commenced by the applicant in respect of X with the first application filed on 29 May 2020.
The record shows that the applicant made application on 20 January 2021 in an application initiating proceedings seeking a discharge of the then ICL, Mr D. The application was unsuccessful.
Final orders were made on 21 May 2021. On 20 October 2021 the applicant filed a second initiating application seeking variation of the final orders of 21 May 2021.
On 27 March 2022 the applicant filed an application seeking the discharge of the then ICL, Ms Watson. That application was dismissed. The applicant appealed and the appeal was either unsuccessful or not prosecuted. That substantive application was finally concluded on the basis of Rice v Asplund[2] on 13 September 2022 with orders of Berman J.
[2] (1979) FLC 90-725.
The applicant appealed the orders of Berman J of 13 September 2022. That application was unsuccessful.
The appointment of Ms Watson as ICL was ended with a judgment of Campton J of 5 May 2023 in respect of matters of costs.
On 19 January 2023 the applicant applied to the High Court for special leave and again on 10 March 2023. Those applications were refused.
The ICL deposes and I accept that there remain three outstanding costs orders made in favour of Tasmania Legal Aid against the applicant and in the following quantum:
(i)16.12.2022 - $5081;
(ii)5.5.2023 - $1800; and
(iii)7.12.2022 - $2927.07.
The applicant commenced the current proceedings by application initiating proceedings filed 16 May 2024.
Pursuant to procedural orders Ms Watson was reappointed as ICL and filed in Notice of Address for Service on 19 January 2025.
On 10 February 2025 the applicant sought discharge of the ICL.
The matter was initially listed for hearing on 22 January 2025. The application was adjourned on the request of the applicant due to asserted medical issues for the applicant.
The matter was relisted on 26 February 2022 was adjourned by consent of the parties due to “settlement discussions”.
The matter was relisted on 14 March 2025.
The applicant contacted Judges Chambers directly on 13 March 2025 by email alleging “illness” and asserting that medical documentation would follow.
No application for an adjournment was made.
The matter was called on 14 March 2025. The applicant did not to attend Court. It is notable that the applicant has at all times attended by Microsoft Teams given his residence in New South Wales. He was provided with the TEAMS link. He did not to attend.
The application for discharge of the ICL was consequently dismissed.
THE APPLICANT’S EXPLANATION FOR FAILURE TO ATTEND AT HEARING
The applicant bears the onus of satisfying the Court on the balance of probabilities that he has a reasonable explanation for his failure to attend Court on 14 March 2020.
I do not accept that the applicant’s email to this Court on 13 March 2025 advising of an illness is a reasonable explanation and particularly in circumstances where the applicant has habitually had leave to attend by Microsoft Teams.
In his affidavit in support of this application sworn 18 March 2025 the applicant annexes and relies on a medical certificate of a Dr O provided for the initial adjourned hearing of 22 January 2025. Significantly, the certificate was completed by Dr O on 18 March 2025 and is therefore retrospective to the hearing on 14 March 2025. The certificate states:
THIS IS TO CERTIFY THAT
[The applicant]
IS RECEIVING MEDICAL TREATMENT, AND he states that on
Friday, 14 March 2025 TO FRIDAY 14 March 2025 INCLUSIVE
He was unfit to attend court hearing in person or via audiovisual link
He has chronic medical conditions which is known to cause unpredictable exacerbations. He states that he had a flareup of pain on 14/3/2025 leading to an inability to attend court.
This Certificate was completed on 18/3/2025
[Dr O]
Where the above medical certificate suffers by both being retrospective and unparticularised, the applicant also annexes a medical certificate from Dr O dated 29/10/2023 stating:
[The applicant] has been a regular patient of mine for many years. He has chronic medical conditions […]. His conditions involve exacerbations of an unpredictable nature, with unknown triggers and are difficult to treat.
He was stable for a period of time in 2022. In 2023 he has had increasing frequency of exacerbations. […] There are medications that help reduce symptoms, but they do not completely control or resolve these symptoms.
There's been no way to reduce, control or predict the frequency of his exacerbations. The impact of his chronic medical conditions has always been unpredictable. Due to the recent stable conditions in 2022, we were hopeful that these conditions may have been in remission. Even with increased exacerbations in 2023, they were manageable to some extent. In particular, the recent exacerbations which has led to [the applicant] needing to withdraw from his unit was not expected, and the severity and length of his symptoms were not known/unable to be predicted until after his full withdrawal date.
In his affidavit the applicant deposes to a “life–long medical condition” with onset at “early adolescence”.
On the balance of probabilities, I am not satisfied that the applicant’s explanation for non-attendance on the Court on 14 March 2025 is reasonable. His medical certificate is post-dated. His medical certificate is unparticularised. The more detailed certificate is dated from 2023.
The applicant has ongoing leave to attend by Microsoft Teams and obviously from his home or place of convenience. For all of these reasons I find his explanation not to be reasonable.
WHETHER DIFFERENT ORDERS MIGHT HAVE BEEN MADE?
The applicant seeks the dismissal of the discharge of the appointment of Ms Watson as ICL. He has previously made similar unsuccessful applications in respect of the ICL. My understanding of the applicant's submissions is that he alleges actual or perceived bias served by the ICL.
It is important to understand the role of the ICL who is appointed to represent the children’s interests in proceedings before these Court’s. Section 68LA sets out the roles and duties of the ICL including at s 68LA(2) to:
(a)form an independent view, based on the evidence available to the Independent Children’s Lawyer, of what is in the best interests of the child; and
(b)act in relation to the proceedings in what the Independent Children's Lawyer believes to be the best interests of the child.
Further, at s 68LA(3) the Independent Children’s Lawyer is obliged, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the Court suggesting the adoption of the course of action.
Specifically, at s 68LA(5) the legislation obliges the Independent Children's Lawyer to:
(a)act impartially in dealing with the parties to the proceedings;
(b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the Court;
(c)if a report or other document that relates to the child is to be used in the proceedings:
(i)analyse the report or other document to identify those matters in the report or other document that the Independent Children's Lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the Court’s attention;
(d)endeavour to minimise the trauma to the child associated with the proceeding; and
(e)facilitate an agreed solution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
It is also clear that the Court has the power to discharge the appointment of the ICL.[3]. Equally, however, the Court should be cautious to entertain the removal of an ICL on the application of a party where it is clear that parties may be confronted by and/or aggrieved by the views or preliminary views of an ICL.
[3] Pagliarilla & Pagliarilla (1993) FLC 92-400.
Should the applicant not be able to demonstrate, on the balance of probabilities, actual bias then he may be arguing perceived bias in the ICL.
If so, then the law is well-settled consistent with the plurality of the High Court in Ebner v The Official Trustee in Bankruptcy[4] where the question to be asked is whether a fair–minded lay observer might reasonably apprehend that the Judge (or in this case the ICL) might not bring an impartial mind to the resolution of questions to be decided.
[4] (2000) 205 CLR 337.
The fictional lay observer as to be neither overly suspicious nor blindly trusting.
The applicant in his submission makes a number of claims against the ICL including:
(i)that the ICL has personally attacked the applicant with an allegation of “mental disorder”;
(ii)that the ICL has wilfully ignored settlement the offers from the parties;
(iii)that “a rogue children’s lawyer who has lost all professional objectivity and is acting in a manner destructive to [X] and the administration of justice”;
(iv)that the ICL has “actively aided and abetted the respondents” “ongoing criminal enterprise’; and
(v)that on 31 March 2025 the ICL gave legal advice to the respondents on how to fund their “ongoing criminal enterprise”.
The first and second respondents to the substantive proceedings act for themselves. They have habitually appeared at Court. They do not support the applicant’s assertions that any settlement has been the reached and equally do not the support the applicant’s assertions that the ICL has somehow sabotaged a settlement. There is no evidence given or adduced of any probity to suggest that the ICL has asserted the applicant to suffer a “mental disorder”.
The ICL is armed with a Specific Issues Report of the 19 February 2025 authored by Court Child Expert Ms Q. X’s views are exposed at [14] of that report. It is entirely proper that the ICL should therefore form an opinion based on those views and particularly where the child is 17 years of age and to turn 18 in 2026.
Where I accept the ICL’s submission that she has been subjected to a barrage of personal and derogatory comment from the applicant, I find no evidence other than the ICL continuing to act objectively with a focus on X’s best interests. The communications from the applicant include a small sample selection thus:
(i)4 March 2025
“you ignorant hack still attacking me! And not the child abuse convicted criminal”
You biased ignorant hack
You have no authority here. You are out.
3 March 2025;
(ii)“Simone Watson you are a disgrace and you should be ashamed of yourself. You will be removed on 14 March 2025 and I hope the LPD removes you from the profession to protect innocent children. You are a menace”;
(iii)Monday, 17 March 2025
“If you refuse you will be named second defendant along with […] and the Tasmanian Legal Commissioner's first and third defendants in a fresh Supreme Court cause of action for negligence, gross negligence and actual fraud and more yet to be advised… I will contemplate on how to join you Simone Watson and the Tasmanian Legal Commission to the Criminal Indictment for aiding and abetting the delinquent defendants.
In her affidavit of 20 January 2025 in respect of the application for her discharge, Ms Watson deposes at [15] to having received 53 emails from the applicant as of 19 January 2025. She deposes to the applicant demanding her stepping down from the role of ICL on 25 November 2020. She deposes to a complaint made about her to Director of Legal Aid on 25 November 2024. She deposes to a second complaint to the Director of Legal Aid made 9 January 2025.
Significantly, Ms Watson deposes to receiving an email from the applicant on 9 January 2025 at 1:01 PM stating:
Once you provide a sound preliminary view on the evidence received … We can dispense with this horrible disqualification hearing and the LPBT reference.
Ms Watson deposes to denying the allegations made against her and says that they have no factual basis. She denies that she has overlooked or disregarded evidence alleged and says that she has considered all evidence in the context of the proceedings.
Within the context of the substantive proceedings and on the evidence provided, I cannot find that a different order would have been made on 14 March 2025 than the order dismissing the application for the discharge of the ICL. In summary:
(i)the determination as to whether to set aside the orders of 14 March 2025 pursuant to Rule 10.13 is a discretionary one but the exercise of which is an unfettered but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.[5]
[5] Clifford & Mountford supra at [5]
A number of statements by Kirby J in Allesch v Maunz[6] may be relevant including and perhaps in support of the application:
35.It is a principle of justice that a decision–maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision and an opportunity to present material information and submissions relevant to such a decision before it is made. The principal lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as 'an indispensable requirement of justice'. It is a rule of natural justice or 'procedural fairness'. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[6] (2000) 203 CLR 172
However, Kirby J continues relevantly to the matter now before me:
40.Nor are Courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non–parties (especially children) may be affected. Additionally (as this Court has accepted) the rights of the public in the efficient discharge by Courts of their functions must be weighed against unreasonable delay in concluding litigation.
CONCLUSION
I do not to accept, on the evidence given and adduced, that the applicant has provided a reasonable explanation for his nonappearance. I emphasise that an email to this Court on the day preceding the hearing, does not constitute an application for an adjournment nor should a party consider that an adjournment is necessarily forthcoming upon the provision of such email communication.
Given the complaints made by the applicant against the ICL but where I find no factual or evidentiary basis to support such complaints, it is unlikely that different orders would have been made on 14 March 2025.
Within the broader context, where the child X is to turn 18 years of age in 2026 and where the ICL is armed with a Specific Issues Report exposing X’s wishes against communication or time with the applicant, the utility of the orders sought by the applicant is questionable.
For all of these reasons, the Court determines not to exercise its discretion in favour of setting aside the orders of 14 March 2025. The application will be dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Date: 24 April 2025
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