Adjournment Refused, Fair Trial Lost: Appeal Allowed Because s 102NA Left the Appellant Unable to Cross-Examine

In Hong & Lai (No 2) [2026] FedCFamC1A 125, Riethmuller J allowed the appellant’s appeal after finding that the refusal of an adjournment denied him a real opportunity to present his case. The appellant was part-way through a property trial when the matter was adjourned. On the resumed hearing date, his lawyers did not appear, his Legal Aid position was unresolved, and s 102NA prevented him from personally cross-examining the respondent. The primary judge refused an adjournment, proceeded with the hearing, and dismissed the appellant’s property application. On appeal, that refusal was found to have affected the final result and caused a miscarriage of justice.

🧩 Facts and Issues

Facts:

The parties were in dispute about whether their de facto relationship ended in April 2011 or October 2022. That date mattered because the appellant filed his property settlement application on 5 December 2023. If the relationship ended in 2022, the application was within time. If it ended in 2011, the application was long out of time and required an extension.

The final hearing began on 25 September 2025. Both parties were legally represented. The hearing was not completed because the Court had another matter to hear, so it was adjourned part-way through the appellant’s cross-examination to 4 December 2025.

On the resumed date, the appellant’s lawyers did not appear. The appellant sought an adjournment, explaining that there were issues with his Legal Aid representation and that he needed a lawyer to conduct the balance of the case. This was critical because an earlier order under s 102NA prohibited the parties from personally cross-examining each other. If the appellant remained unrepresented, he could not personally cross-examine the respondent.

The primary judge refused the adjournment, proceeded with the hearing, found the de facto relationship ended in April 2011, refused an extension of time, and dismissed the appellant’s property application. The appellant appealed.

Issues:

1. Did the primary judge err in treating the appellant’s loss of representation as voluntary?
2. Did the refusal of the adjournment affect the final result?
3. Did s 102NA make the refusal of the adjournment procedurally unfair?
4. Should further evidence about the appellant’s dealings with Legal Aid NSW be admitted on appeal?
5. Were the primary judge’s factual and credibility findings otherwise unsafe?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 102NA — prohibits personal cross-examination in certain family violence circumstances and requires cross-examination to be conducted by a legal representative.

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 26(2)(b)(ii) — no appeal lies from an adjournment decision as an interlocutory decision.
• s 35 — appellate discretion to admit further evidence.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• r 3.10(1A) — after a final hearing has commenced, a lawyer cannot simply cease to act by filing a Notice of Ceasing to Act without leave; this protects against disruption and potential miscarriage of justice.

Evidence Act 1995 (Cth)

• s 43 — cross-examination on prior inconsistent statements.
• s 69 — business records exception to hearsay, relevant to government records relied upon in the de facto separation-date dispute.

Legal Aid Commission Act 1979 (NSW)

• ss 56–57 — review and adjournment issues arising where a Legal Aid review is pending or intended. The Court did not need to finally decide how those provisions applied to the FVCoP Scheme because the Legal Aid grant had not actually been terminated at the time of the adjournment refusal.

📌 Precedents Relied On

• CDJ v VAJ — principles governing further evidence on appeal.
• Gerlach v Clifton Bricks Pty Ltd — although adjournment decisions are not separately appealable, an interlocutory ruling can ground an appeal from final orders if it affected the final result and caused a miscarriage of justice.
• Legal Aid ACT & Westwell — considered in relation to legal aid terminology, though of limited assistance in this context.
• Whisprun Pty Ltd v Dixon — a trial judge need not mention every fact or argument relied upon by the losing party.
• Fox v Percy — appellate caution in disturbing factual and credibility findings.
• Lee v Lee — appellate restraint where findings depend on credibility and reliability assessments made by the trial judge.

🧠 Analysis

Issue

Did the refusal of the adjournment deny the appellant procedural fairness where he was unrepresented, still under cross-examination, unable to personally cross-examine the respondent because of s 102NA, and his Legal Aid position had not actually been finalised?

Rule

A party must have a real opportunity to be heard. Ordinarily, a self-represented litigant can continue with a hearing, even if disadvantaged. But s 102NA changes the position because it removes the party’s ability to personally cross-examine the other party.

An appeal cannot usually be brought directly against an adjournment refusal because of s 26(2)(b)(ii). However, if the refusal of an adjournment affects the final result and causes a miscarriage of justice, it can support an appeal from the final orders.

Where the inability to cross-examine is likely to be decisive, refusal of an adjournment may deny procedural fairness.

Application

1. The primary judge acted on a wrong factual premise

The primary judge treated the appellant’s lack of representation as something he had voluntarily caused. That was the first major problem.

The evidence before the primary judge did not establish that the appellant had terminated his lawyers’ instructions. It showed that the appellant had asked Legal Aid NSW to transfer his grant of aid to a different solicitor and that Legal Aid NSW had issued a Notice of Intention to terminate the grant. There was no evidence that the grant had actually been terminated at the time of the adjournment application.

Riethmuller J held that the finding that the appellant’s representation had been voluntarily terminated was not open on the evidence. The evidence supported only that he had sought a transfer of representation, not that he had left himself deliberately unrepresented.

2. The absent lawyers should have appeared and sought leave to withdraw

The appellant’s lawyers had appeared at the first hearing date. The matter had already commenced. Under r 3.10(1A), they could not simply cease to act by filing a notice after the final hearing had started without leave of the Court.

Riethmuller J emphasised that the lawyers’ absence created serious confusion. If the lawyers had appeared and sought leave to withdraw, they could have clarified whether the appellant had actually withdrawn instructions, what had happened with the Legal Aid grant, and why they were not continuing.

That mattered because the appellant was unrepresented, using an interpreter, appearing by electronic link, and facing a restriction under s 102NA that prevented him from personally testing the respondent’s evidence.

3. s 102NA made this different from an ordinary self-represented hearing

This was the decisive feature. In an ordinary civil or family law hearing, a party who loses representation may still present their case and cross-examine witnesses. Here, the appellant could not.

Because s 102NA prohibited personal cross-examination, the appellant was unable to cross-examine the respondent at all unless he had a lawyer. That restriction went directly to the fairness of the hearing.

The case turned heavily on competing evidence about whether the parties’ de facto relationship ended in 2011 or 2022. The respondent’s evidence was central to that issue. Riethmuller J held it was almost inevitable that the appellant’s case would fail if the respondent was not cross-examined.

4. The adjournment refusal affected the final result

The appellant’s case was not hopeless. He had evidence supporting his claim, including photographs of belongings at the respondent’s home, social events, payment of expenses, joint school emails, joint holidays, and concessions that he stayed at the respondent’s home when visiting the child.

The respondent relied on competing evidence, including Centrelink records, Department of Communities and Justice records, closure of a joint bank account, and child support material. But those matters required testing, especially because the appellant’s case included the allegation that representations to government agencies about separation were false.

Without cross-examination, the appellant could not properly test the respondent’s evidence or advance his case. The refusal of the adjournment therefore affected the final result and caused a miscarriage of justice.

5. Further evidence was mostly refused, but the adjournment application was admitted

The appellant sought to rely on further evidence about his dealings with Legal Aid NSW and his former lawyers. The Court admitted only the copy of the adjournment application because it had been before the primary judge and ought to have been included in the Appeal Book.

The rest of the further evidence was not admitted. Riethmuller J held that most of it was consistent with what could already be inferred from the material before the primary judge and added little. The later termination of the Legal Aid grant did not change the circumstances at the time the adjournment was refused.

That said, the existing record was enough to establish the procedural fairness error.

6. The factual and credibility grounds failed

The appellant also challenged the primary judge’s credibility findings and the use of government records. Those grounds failed.

The government records were admissible under s 69 of the Evidence Act as business records and were relevant because they contained prior inconsistent statements by the appellant. Riethmuller J also noted that appellate courts are cautious about disturbing credibility findings, particularly where the trial judge saw and heard the witnesses.

The findings were not “glaringly improbable” or contrary to compelling inferences. But those failed factual grounds did not save the final orders, because the procedural fairness error was enough to require a rehearing.

Conclusion

The appeal was allowed. The orders made on 4 December 2025 dismissing the appellant’s property application were set aside. The matter was remitted for rehearing before a judge of Division 2.

The appellant was also granted a costs certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

🧠 Take-Home Lesson

This case is a powerful procedural fairness authority for matters involving s 102NA. When a party is prohibited from personally cross-examining the other party, the Court must be especially careful before forcing the hearing to continue after that party’s legal representation collapses.

The key point is not simply that the appellant was self-represented. The key point is that he was legally disabled from cross-examining the respondent. That made the adjournment refusal far more serious.

The case also shows the importance of lawyers formally seeking leave to withdraw once a final hearing has commenced. Their unexplained absence can create real unfairness, particularly where Legal Aid funding, FVCoP representation and cross-examination restrictions intersect.