Pierce & Pierce (No 2) [2025] FedCFamC1A 162 (12 September 2025)

🔹 Introduction

In Pierce & Pierce (No 2), the Full Court of the Federal Circuit and Family Court of Australia dismissed a father’s appeal against interim parenting orders that gave the mother sole parental responsibility, ordered the children to live with her, and restrained the father from contact. The case highlights the paramountcy of children’s safety under Pt VII Family Law Act 1975 (Cth) and the Court’s intolerance for prolix, unsupported appeals.

🔹 Facts and Issues

• Parties & children: Three children aged 5, nearly 4, and 2.
• Father’s background: History of mental health issues (bipolar and borderline personality disorder diagnoses), involuntary psychiatric hospitalisation, erratic behaviour, and repeated breaches of an ADVO (including abusive texts and unapproved visits).
• Mother’s background: Primary carer; caring for eldest child with serious medical condition requiring specialist treatment.
• Father’s conduct: Disputed medical treatments, threatened doctors, secretly recorded consultations, and disrupted medical care. Supervised contact at a centre ceased due to his non-compliance.
• Orders under appeal: Children to live with the mother, no time or communication with the father, and sole parental responsibility to the mother.
• Appeal grounds: The father raised 28 grounds, alleging misdiagnosis, judicial dishonesty, failure to consider his evidence, and misconduct by police and the mother.

Issues:

1. Did the primary judge err in assessing risk and mental health evidence?
2. Were findings about the father’s behaviour and ADVO breaches erroneous?
3. Did the appeal establish grounds under House v The King for appellate intervention?

🔹 Rule (Law)

• Best interests & safety: s 60CC requires consideration of children’s safety and wellbeing. s 60CG prohibits parenting orders that expose a person to an unacceptable risk of family violence.
• Family violence orders: s 60CC(2A) requires the Court to consider any ADVOs and family violence history.
• Appeals: Under House v The King (1936) 55 CLR 499, appellate intervention is limited to errors of principle, irrelevant/relevant considerations ignored, factual error unsupported by evidence, or plainly unjust orders.
• Risk assessment: The test in Isles & Nelissen (2022) FLC 94-092 requires (1) assessing allegations on civil standard, (2) assessing risk of recurrence and harm.
• Costs: s 114UB Family Law Act – parties normally bear own costs, but costs may be ordered if proceedings are misconceived or unjust.

🔹 Application (Law to Facts)

1. Mental health findings:

• The father claimed the judge relied on “guesswork” regarding bipolar diagnosis.
• The Court noted multiple psychiatrists and a single expert reported significant mental illness affecting parenting capacity.
• Even without firm diagnosis, his irrational conduct and refusal to medicate supported risk findings.

1. ADVO breaches:

• Father argued ADVOs were “malicious.”
• The record showed guilty pleas, incarceration, and repeated breaches.
• Findings of risk were objectively supported, not speculative.

1. Hyper-fixation on medical treatment:

• Judge accepted evidence of father’s fixation on eldest child’s care, threatening specialists, and disrupting treatment.
• Appeal failed to show this finding was “glaringly improbable” (Fox v Percy (2003) 214 CLR 118).

1. Risk to children:

• Judge concluded children were at unacceptable risk if they spent time or communicated with father, due to untreated mental health, disregard for court orders, and risk of emotional harm.
• Appeal Court confirmed this was a correct application of Isles & Nelissen.

1. Allegations against mother:

• Father alleged attempted murder and poisoning.
• Court found no cogent evidence; complaints dismissed as “nonsensical”.

1. Procedural fairness:

• Appeal grounds were prolix and non-compliant with rules.
• The Court emphasised appellants must clearly identify alleged errors (Shinohara [2025] FedCFamC1A 126).

1. Costs:

• Given the wholly unsuccessful and misconceived appeal, father ordered to pay $11,155.76.
• Referred to the NSW Legal Services Commissioner for unprofessional conduct.

🔹 Judgment & Reasoning

• Appeal dismissed.
• Orders for no time and no communication with father upheld.
• Sole parental responsibility awarded to mother justified by father’s untreated mental health, ADVO breaches, and failure to comply with supervision protocols.
• Father’s grounds were repetitive, unsupported, and scandalous, amounting to an abuse of process.

🔹 Take-Home Lesson

• Safety first: Courts will not order contact where a parent poses an unacceptable risk, even if supervised time is not feasible.
• Evidence matters: Unsupported allegations against the other parent or the Court undermine credibility.
• Appeals are limited: Dissatisfaction or repetition of rejected claims does not establish appealable error.
• Professional conduct: Litigants, especially those with legal training, face serious consequences for scandalous, baseless allegations.

👉 Lesson: In family law appeals, clarity, evidence, and focus on the child’s best interests are paramount. Misconceived appeals risk dismissal, costs, and professional referral.