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One Day Can Matter: Appeal Adjourned Where Litigant-in-Person Faced Conflicting Tribunal Mediation

In Fierro & Bien [2026] FedCFamC1A 14, the Federal Circuit and Family Court of Australia (Division 1, Appellate Jurisdiction) considered whether an appeal hearing should be adjourned for one day due to the appellant’s unavoidable attendance at a Tribunal-ordered mediation. Although modest in scope, the decision is a useful illustration of appellate case-management discretion, the operation of s 32 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and the Court’s pragmatic approach to procedural fairness—particularly where the appellant is self-represented.

🧩 Facts and Issues

Key Facts

  • The appellant, Mr Fierro, was self-represented (litigant in person).
  • He filed an Amended Notice of Appeal on 9 November 2025 challenging trial orders made on 5 November 2025 (¶1).
  • The appeal was listed before the Full Court for 25 February 2026 (¶2).
  • Separately, the appellant was required to attend a Tribunal-ordered mediation on that same date, arising from proceedings against a professional body (¶4).
  • On 15 January 2026, he filed an Application in an Appeal seeking an adjournment (¶5).
  • The appellant ultimately agreed to a one-day adjournment so the appeal could be heard on 26 February 2026 (¶6).
  • Neither respondent nor the Independent Children’s Lawyer opposed the adjournment (¶7–8).

Issues

  1. Does a single judge have jurisdiction to determine an interlocutory adjournment application in an appeal?
  2. Is it reasonable and appropriate to adjourn an appeal hearing for one day due to a conflicting Tribunal mediation?

⚖️ Law

Statutory Framework

  • Section 32, Federal Circuit and Family Court of Australia Act 2021 (Cth)
  • s 32(3)(c): A single judge may make interlocutory orders pending the determination of an appeal.
  • s 32(5): Such applications are ordinarily to be heard by a single judge unless otherwise directed.

Procedural Principles

  • Courts retain a broad case-management discretion to adjourn proceedings where fairness requires it.
  • Procedural fairness includes ensuring a party is not required to choose between compliance with two compulsory legal processes scheduled at the same time.

No contested precedent was required given the consensual and procedural nature of the application.

🔍 Application of Law to Facts

  • Justice Howard confirmed jurisdiction under s 32 to determine the adjournment as a single judge (¶3).
  • The appellant demonstrated a genuine and unavoidable clash: attendance at a Tribunal mediation ordered on 10 December 2025 (¶4–5).
  • The Court proactively sought submissions on whether a limited adjournment would resolve the difficulty (¶6).
  • Importantly, the appellant’s agreement to a one-day adjournment, rather than a longer delay, weighed heavily in favour of granting relief.
  • The absence of opposition from any other party further supported the exercise of discretion (¶7–8).

🧠 Analysis of the Judgment & Judicial Reasoning

Justice Howard’s reasoning is concise but instructive:

  • The Court emphasised reasonableness and proportionality, granting only the minimum adjournment necessary (¶9).
  • The decision reflects sensitivity to the position of a litigant in person, without conferring any unfair advantage.
  • The Court balanced:
  • efficient appellate timetabling, against
  • the appellant’s right to meaningfully participate in both proceedings.

The adjournment avoided forcing the appellant into an impossible position while preserving the integrity of the appellate process.

📚 Precedents Relied On

  • None expressly cited, reflecting the uncontroversial, interlocutory nature of the application.
  • The decision rests squarely on statutory power (s 32) and orthodox case-management principles.

🎓 Take-Home Lesson Learned

  • Appeal courts can and will act pragmatically where procedural fairness is at stake.
  • A single judge has clear authority to deal with interlocutory matters in appeals.
  • Parties—especially self-represented litigants—should:
  • act promptly,
  • provide clear evidence of unavailability, and
  • propose proportionate solutions (e.g. a short adjournment).
  • Cooperation and reasonableness can significantly influence discretionary outcomes.

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