Pierce & Pierce [2025] FedCFamC1A 148 (19 August 2025)

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 Pierce & Pierce has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is the hearing of an Application in an Appeal brought by the applicant by which he seeks to have a procedural order made by an appeal judicial registrar on 8 August 2025 vacated. The particular order the subject of the application is the order requiring the applicant to file and serve the digital transcript of the hearing before the primary judge by 4.30 pm on 13 August 2025. Order 7 goes on to provide that if that order is not complied with then, pursuant to r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the appeal will be taken to be abandoned.
2. The applicant has not appeared to prosecute the application this morning. Last week he made a request to be excused from personal attendance and to attend remotely and electronically because he was "unavailable".
3. It is the practice of the Federal Circuit and Family Court of Australia (Division 1), at least in this registry, to conduct all proceedings in person unless and until orders are made excusing either the parties or the legal representatives from personal attendance. Being granted leave to appear remotely is neither a privilege nor a right but depends upon the exercise of the discretion of the court hearing the matter and the court will take into account varied matters according to the nature of the proceedings and the reason given for the remote attendance. Saying simply that the applicant to appear remotely is unavailable is woefully inadequate and unpersuasive and it was for that reason the request was refused.
4. The applicant has since engaged in a large amount of correspondence with the appeal judicial registrar and I am informed part of that includes a statement to the effect that the applicant is overseas, but he does not provide details of where or any further evidence about it. In any event, that was not in the request that was dismissed and no further request was filed.
5. The question is what to do with the present application. I am urged by the respondent and the Independent Children's Lawyers to dismiss the application. They, after all, have gone to the trouble and expense and bother of attending in person. There is a great deal of force in the submission. The effect of refusing the application would be the orders of the appeal judicial registrar will not have been complied with and the appeal will be taken to be abandoned.
6. However, given the determined attitude of the applicant, as demonstrated through his correspondence, that is unlikely to be the end of the matter. There would either be an application to set aside the order dismissing the application pursuant to the rule that entitles a party to seek to set aside orders made in their absence and/or an application to reinstate the appeal.
7. Abandonment of the appeal would mean vacating the appeal date which was listed urgently for Tuesday 26 August 2025, which is next week. If that date is lost, it would be difficult to find another date urgently and there would still be the trouble and expense of those applications I just foreshadowed.
8. Generally speaking, the court will not force an appellant who genuinely cannot afford the transcript to obtain it, but there are consequences when that occurs. If a ground of appeal depends upon establishing what was said and done or not said and done at the hearing then the absence of the transcript makes it very difficult for an appellant to succeed on that ground. If the appellant is prepared to proceed on that understanding, that of course is then a matter for him or her. The absence of the applicant from the hearing today makes it impossible to explain that to him.
9. With some considerable degree of reluctance, I think the better course in this matter is to adjourn the application for consideration by the bench hearing the appeal on 26 August 2025 and that the respondent and the Independent Children's Lawyer be given leave to file and serve such application for costs in relation to today as they wish to make to be returnable before the Full Court at the hearing of the appeal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.