A Good Excuse Was Not Enough: Full Court Refuses to Revive an Appeal Dismissed in the Applicant's Absence

In Fierro & Bien (No 4) [2026] FedCFamC1A 186, the Full Court (Gill, Harper and Brasch JJ) dealt with a self-represented applicant's bid under r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to set aside orders that had dismissed his appeal when he did not appear on 24 August 2026 ([1]–[3]). The result: the Application in an Appeal, as amended, was dismissed, leave to rely on a rewritten Notice of Appeal was refused, and there was no order as to costs (Orders 1–2; [69]–[70]). The important point is that the Court was prepared to accept the applicant had a reasonable excuse for not appearing ([29]), but that was only half the test. He also had to show some reason to suspect the result might have been different had he appeared, and his original grounds were incompetent and had no prospect of success ([27], [30], [39], [47]). Grounds rewritten after reading the dismissal judgment could not fill that gap ([50]–[53], [63]). All paragraph references below are to the judgment.

Why it matters: Many self-represented litigants assume that if they had a genuine reason for missing a hearing, such as being unwell, the order made in their absence will be set aside. This judgment shows why that is not so. An excuse gets you to the starting line. You must also show the outcome might have been different, judged by the case you actually had on the day you should have appeared, not a better case drafted afterwards ([27], [53]). The Court also gave real weight to the prejudice caused to the other parties by six years of litigation ([65]–[68]).

🧩 Facts and Issues

The parties and the long history

The applicant (Mr Fierro) is the half-brother of a child who has since turned 18. The first respondent (Ms Bien) and the second respondent (Mr A Fierro, the applicant's father) are the child's separated parents ([10]). All three were self-represented ([26], [70]).
The applicant began parenting proceedings about the child in May 2020. The Court described the proceedings as having continued "in various iterations, across various registries of this Court, for six years, driven primarily by the applicant" ([10]).
Consent parenting orders in May 2021 provided for no physical interaction between the child and the applicant, and restrained him from communicating with her unless she initiated contact ([11]).
A 2021 application to vary those orders was dismissed in September 2022 because no material change in circumstances was shown ([12]).
A further application for final orders, filed in May 2024, was dismissed on 5 November 2025. The Court had refused an adjournment, costs orders "in the favour of 'the public purse'" were unpaid, and the child was by then three months from turning 18 ([13]).
The applicant's appeal from that dismissal was allowed only in part on 21 April 2026 in Fierro & Bien (No 2) [2026] FedCFamC1A 65. The dismissal of his application for final orders was left undisturbed ([14]). FLAST covered that decision here: “Error Without Remedy, Remedy Without Error”. FLAST also covered an earlier appellate ruling in the same series, Fierro & Bien [2026] FedCFamC1A 14, where a short adjournment was granted: One Day Can Matter. That earlier ruling is not discussed in this judgment.

The decision under appeal: a Harman undertaking release

In Fierro [2026] FedCFamC1F 285, the primary judge dismissed the applicant's application under r 15.26 of the Rules to be released from the implied Harman undertaking over three translated documents produced in overseas litigation ([5]).
He wanted to use the documents in other courts, and to give them to police, a Director of Public Prosecutions and a professional body ([5]).
The primary judge found no "special circumstances" and positively found that the circumstances, "whilst unusual, are not 'special'" ([8]).
The respondents' own application for vexatious proceedings orders under s 102QB of the Family Law Act 1975 (Cth) has not yet been decided by the primary judge ([7], [9], [66]).

The appeal dismissed in his absence

The applicant filed a Notice of Appeal on 15 May 2026. At the hearing on 24 August 2026 he did not appear. He had emailed the registry and chambers that day seeking an adjournment, relying on medical certificates, the most recent dated six weeks earlier ([3], [28]).
The Full Court dismissed the appeal ex tempore in Fierro & Bien (No 3) [2026] FedCFamC1A 162. There was no proper basis for an adjournment, he was in default of appearance, his grounds were incompetent and the appeal had no prospects of success ([3]). The respondents appeared and asked for dismissal ([4]).

The application to set aside

On 26 August 2026 the applicant applied under r 10.13(1)(a) to set aside the dismissal and reinstate the appeal ([1], [16]–[17]).
After receiving the settled reasons for the dismissal on 9 September 2026, he amended the application to seek leave to rely on an Amended Notice of Appeal. He "candidly conceded" the new grounds were drafted in response to the dismissal judgment ([19]). A further version a day later took the total to seven grounds ([20]).
Leave to rely on medical records first lodged the day before the hearing was refused ([23]). The respondents' late attempt to rely on $48,824 in unpaid costs orders, under the Hadkinson principle, was also refused because it was raised for the first time in their affidavit ([25]).

Issues

Should the orders made in the applicant's absence be set aside under r 10.13(1)(a) ([16], [27])?
Could the applicant rely on grounds of appeal drafted after the dismissal to show a different result was possible ([22], [50])?
What weight should prejudice to the respondents carry ([65]–[68])?

⚖️ Applicable Law – Legislation, Regulations, Rules

r 10.13(1)(a) of the Rules: a discretion to set aside or vary an order made in the absence of a party. It applies to orders made in the Court's appellate jurisdiction ([16]).
ss 95 and 96 of the Act: the overarching purpose, including the public interest in finality and proportionate, efficient use of judicial resources. The r 10.13 discretion is "unfettered but must be exercised judicially" with these in mind ([27]).
r 15.26 of the Rules: release from the implied undertaking requires the applicant to show "special circumstances exist" ([6]).
s 102QB of the Act: vexatious proceedings orders, which the respondents have sought and which remain undetermined ([7], [66]).
Leave to appeal: the primary decision was interlocutory, so leave was needed. That required sufficient doubt to warrant reconsideration and substantial injustice if leave were refused ([31]).

📌 Precedents Relied On

The Court relied on these authorities:

Barbey & Tuttle (2013) FLC 93-534: regard is given to the explanation for not appearing, the possibility of a different result, and prejudice to the other party ([27]).
Scott (No 4) [2023] FedCFamC1A 239: r 10.13 applies on appeal, and the aggrieved party must show both a reasonable excuse and reason to suspect a different result ([16], [27]).
Allesch v Maunz (2000) 203 CLR 172: the source of the two-part test, and the principle that irremediable injustice to the other side weighs strongly against a party who failed to appear, even with a satisfactory explanation ([27], [65]).
Kuang & Kuang (2025) FLC 94-240: the leave to appeal test, and the "special circumstances" threshold for release from the implied undertaking ([31], [40]–[41]).
Newett & Newett (No 2) and (No 8): an appellant must identify error. The Court should not be expected to "rummage around" in contentions to find it ([36]).
Pachris & Tajir (No 3) [2023] FedCFamC1A 230 and Saha & Lahiri (No 3) (2023) 67 Fam LR 217: grounds set the metes and bounds of an appeal, and leave is judged by reference to them ([37]).
House v The King (1936) 55 CLR 499: what must be shown to establish discretionary error ([35]).
Wynn & Danilov (2023) 68 Fam LR 215: a litigant must present their case carefully and fully, like any other litigant ([46]).
Hearne v Street (2008) 235 CLR 125 and Harman v Secretary of State for the Home Department [1983] 1 AC 280: the implied undertaking ([5]).

🧠 Analysis

Issue

Can a party whose appeal was dismissed in their absence have it reinstated because they had a good excuse, and can they rely on better grounds written after the event to show the result might have been different?

Rule

The applicant had to demonstrate "first, a reasonable excuse for having failed to appear in the first instance, and secondly, reason to suspect the result might have been different had the party appeared and been able to present the case he or she intended" (Scott (No 4), quoted at [27]). Prejudice to the other party is also weighed ([27], [65]).

Application

The excuse was accepted, for present purposes

The adjournment request on the day rested on "entirely inadequate medical evidence" ([28]). But a letter obtained the day after the hearing said he was medically unfit to appear "in person or via audiovisual link" from 24 to 28 August 2026. The Court said: "For present purposes, we are prepared to accept this is a reasonable excuse for the failure to appear" ([29]).

No reason to suspect a different result

The excuse did not carry the application. The appeal had also been dismissed because the grounds were incompetently expressed and had no prospect of success ([30]). The applicant had not even sought the leave he needed, because the decision was interlocutory ([31]). The Court therefore asked whether leave could have been granted on the grounds as they stood ([33]).

"Error of Law" and "Denial of Procedural Fairness" are labels, not grounds

The two original grounds were simply "Error of Law - Miscarriage of Discretion" and "Denial of Procedural Fairness / Natural Justice" ([38]). The Court said: "Clearly, grounds expressed in this way are incompetent" ([39]). They identified no discretionary error in the actual judgment ([39]).

The Summary of Argument did not help

The Court worked through the arguments and found none of them arguable:

The complaint that the primary judge evaluated the application "globally" was "plainly incorrect". Each proposed use was considered individually ([42]).
The primary judge had assessed forensic significance, and found it was not shown because no pleadings, affidavits or other detail of the other proceedings were provided ([43]).
Taking into account the applicant's motives and litigation history was not shown to be even arguably irrelevant. In any case, the discretion was never enlivened ([44]–[45]).
On procedural fairness, a judge has no obligation to point out gaps in a party's evidence and invite them to fix them. Doing so "would have been procedurally unfair to the respondents" ([46]).

The Court concluded it was "unable to conclude there was any possibility of leave to appeal being given or of a different result" ([47]).

New grounds cannot be judged against the old hearing date

The applicant argued his seven new grounds cured the defects and showed a different result was possible. The Court called this "a nonsensical argument" ([50]), for several reasons:

Amending grounds after an appeal is dismissed for having no prospect of success would be unfair to the respondents and likely an abuse of process ([51]).
The r 10.13 discretion should not generally take account of grounds "which were not even formulated" when the party failed to appear ([52]).
"The point in time to which the Court has regard is the date upon which the applicant should have appeared to argue his appeal, not a date after he has been told by a judgment of the Court that his grounds of appeal are incompetent" ([53]).
The onus lay "squarely on the applicant, not the Court" to have competent grounds by 24 August 2026 ([53]).

The new grounds would have failed anyway

Given what the Court called "the unhappy history of this litigation", it explained why the new grounds also had no prospect ([54]). Grounds 1 to 5 repeated the original complaints "with additional verbiage" ([55]–[57]). Grounds 6 and 7 complained that a second, consequential order was dismissed without separate determination. But once the main relief failed, the consequential order "must also fail", so no procedural unfairness could be shown ([58]–[59]). Leave to amend was refused on the separate basis that seeking it in response to the dismissal judgment was an abuse of process ([63]).

Prejudice to the respondents

The Court made further comments on prejudice ([65]). The respondents had "been dragged through lengthy and convoluted litigation over six years" about a child who is now an adult, causing harm that "cannot now be cured by orders for costs or any other remedy" ([67]). The prejudice had become "irremediable", and there was "no reason to subject them to the burden of further appearances" ([68]). The Court noted, though, that the vexatious proceedings application is still to be determined by the primary judge ([66]). This judgment does not decide it.

Conclusion

The application was dismissed and leave to amend refused ([69]). Even if the applicant had appeared and obtained an adjournment to put on his amended grounds, "no different outcome could ultimately be envisioned" ([62]). There was no order as to costs because all parties were self-represented ([70]).

🧠 Take-Home Lesson

A reasonable excuse is only half the test. To set aside an order made in your absence, you must also show reason to suspect the result might have been different ([27], [30]).
The test looks at the day you should have appeared. You cannot rely on grounds drafted after reading the judgment that dismissed your appeal ([52]–[53]).
Labels are not grounds. "Error of law" or "denial of procedural fairness" on its own identifies nothing. Point to the paragraph and the specific error ([38]–[39]).
Check whether you need leave. An appeal from an interlocutory decision needs leave, and the Court will ask whether leave could have been granted ([31]–[33]).
The judge will not fix your case for you. A court is not obliged to point out gaps in your evidence and invite you to fill them ([46]).
Medical evidence must be current and specific. A certificate six weeks old that does not mention the hearing date was "entirely inadequate" for an adjournment ([28]).
Prejudice to the other side counts. Long, repetitive litigation can cause harm that costs orders cannot repair, and it weighs against reopening a matter ([65]–[68]).
Support workers and McKenzie friends: if a hearing is missed, help the person file promptly with proper medical evidence, and honestly assess whether the original grounds could have succeeded.

"The point in time to which the Court has regard is the date upon which the applicant should have appeared to argue his appeal." ([53])

"A good excuse gets you to the starting line. It does not reopen a hopeless appeal." (FLAST takeaway)

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