s 102NA Is Not an Automatic Adjournment Card: Father Loses Appeal Because Late Representation Problems Were Caused by His Own Delay

In Suss & Kunkle [2026] FedCFamC1A 127, the Full Court dismissed the father’s parenting appeal. The father argued he was denied procedural fairness because audio recordings were admitted despite late disclosure, and because he was forced to continue with a solicitor appointed shortly before trial under the legal aid scheme connected with s 102NA. The Court rejected both arguments. The decisive point was that the father had been given a reasonable opportunity to arrange representation well before trial, but his lack of preparation resulted from his own choices, repeated changes of solicitors and late legal aid arrangements — not from any denial of procedural fairness. The father was ordered to pay the mother’s costs fixed at $13,723.60 and the ICL’s costs fixed at $7,764.

🧩 Facts and Issues

Facts:

The parties were both aged 34. They began living together in January 2016 and finally separated in June 2022. They had one child, X, born in June 2018. After separation, the father remained in the family home with the child. The mother initially saw the child only under limited supervised arrangements controlled by the father.

The mother commenced parenting proceedings on 19 August 2022. Interim consent orders later gave the mother increasing time with the child, first four nights per fortnight and then five nights per fortnight.

The final hearing was originally listed to commence on 16 June 2025. Shortly before that hearing, the mother disclosed 24 audio recordings, of which she sought to tender 12. The recordings appeared to contain admissions by the father to significant acts of family violence. The father objected to the recordings being admitted, relying on late disclosure and issues under surveillance and evidence legislation. The primary judge allowed time for the father’s counsel to listen to the recordings and take instructions, then heard the admissibility argument. The recordings were admitted.

The final hearing was relisted to 13 August 2025. By that time, the father was affected by a s 102NA order preventing him from personally cross-examining the mother. He had changed lawyers multiple times and ultimately appeared with a solicitor appointed through the legal aid scheme shortly before the hearing. His adjournment application was refused, but the primary judge gave additional time and allowed the ICL to cross-examine first so the father’s solicitor had more time to prepare.

At the end of the trial, the primary judge found significant family violence perpetrated by the father. Final parenting orders provided for the child to live with the mother, for the mother to have sole decision-making authority, and for the father to spend time with the child after a short moratorium and then under a gradually increasing regime.

Issues:

1. Was the father denied procedural fairness by the late disclosure and admission of audio recordings?
2. Did the primary judge err by refusing to adjourn the final hearing despite the father’s late-appointed solicitor and the operation of s 102NA?
3. Did the father have a reasonable opportunity to arrange representation and present his case?
4. Was the primary judge bound by what the father described as an agreement about school holiday time?
5. Were adequate reasons given for the gradual increase of the father’s holiday time?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 102NA — prohibits personal cross-examination in certain circumstances, requiring cross-examination to be conducted by a legal representative.

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

• s 26(2)(b)(ii) — prevents an appeal from being brought directly against an interlocutory adjournment decision. However, an adjournment refusal may still be considered on appeal from final orders if it affected the final result and caused procedural unfairness.

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

• r 6.17 — failure to disclose a document prevents reliance on it unless the Court grants leave. Late disclosure is not an absolute bar.

Evidence Act 1995 (Cth)

• s 138 — discretion to exclude improperly or illegally obtained evidence.

Surveillance Devices Act 2016 (SA)

• s 4 — relevant to whether the audio recordings were unlawfully obtained or should be excluded.

📌 Precedents Relied On

• House v The King — discretionary appellate error; the appeal court will intervene only where the primary judge acted on wrong principle, considered irrelevant matters, failed to consider material matters, made material factual mistakes, or reached an unreasonable/plainly unjust result.
• Gerlach v Clifton Bricks Pty Ltd — an interlocutory ruling can support an appeal from final orders if it affected the final result.
• Michael Wilson & Partners Ltd v Nicholls — procedural rulings can matter on appeal where they cause practical unfairness affecting outcome.
• Sullivan v Department of Transport — procedural fairness concerns whether a reasonable opportunity was provided, not whether the party made full use of it.
• U v U — parenting orders must reflect the child’s best interests; the Court is not bound by parental agreement.
• Fiedler & Vitale — confirms that parenting orders are not dictated by party agreement if the Court considers a different order better serves the child’s interests.
• Stock & Stock — relevant to procedural fairness arguments where a party says the Court made orders outside the way the case was run.

🧠 Analysis

Issue

Did the primary judge’s management of late-disclosed recordings, late legal representation and s 102NA create procedural unfairness serious enough to overturn the parenting orders?

Rule

Procedural fairness requires a party to have a reasonable opportunity to be heard. It does not guarantee the party’s preferred timetable, preferred lawyer, preferred forensic position, or a perfect trial.

Where s 102NA prevents personal cross-examination, refusal of an adjournment may be more serious because the party cannot personally cross-examine the protected witness. But s 102NA is not the same as an automatic entitlement to adjournment. The key question remains whether the party had a reasonable opportunity to obtain representation and present their case.

A party cannot usually rely on their own delayed legal aid application, repeated lawyer changes, or late forensic decisions as proof that the trial was unfair.

Application

1. The late-disclosed audio recordings were allowed in

The mother disclosed the audio recordings very late. The father argued that admitting them was procedurally unfair because they had not been disclosed in accordance with the Rules and because he did not have enough time to challenge their authenticity or completeness.

The Full Court rejected that argument. Under r 6.17, late disclosure does not create an automatic exclusion rule. The Court may grant leave to rely on the material. The primary judge treated the recordings as significant because they appeared to contain admissions by the father to acts of family violence. The mother also gave an explanation for not disclosing them earlier: she said she had not told the father she was recording because she feared angering him and feared he would hurt her.

The primary judge adjourned the matter to give the father’s counsel time to listen to the recordings and obtain instructions. The father then had another two months before the August final hearing to investigate authenticity, completeness or context. He did not put a proper argument to the primary judge that the recordings were inauthentic, inaccurate or incomplete, nor did he obtain expert evidence.

The Full Court held that the father had a real opportunity to challenge the recordings. He could not raise those complaints for the first time on appeal.

2. The s 102NA adjournment argument failed

The father’s central procedural fairness complaint was that the final hearing proceeded with a solicitor who had only been appointed shortly before trial, had limited experience, and had insufficient time to prepare.

The Full Court accepted that s 102NA made representation important because the father could not personally cross-examine the mother. But that did not mean the case had to be adjourned automatically. The father had known about the s 102NA restriction well before the final hearing. The order had been made on 26 September 2024, many months before the August 2025 trial.

The father had changed solicitors repeatedly. He had been warned on 30 May 2025 that the trial would not be vacated because of his lack of preparedness, becoming self-represented, or changing lawyers. Despite that warning, his fourth solicitors ceased acting shortly before the August trial and he sought legal aid only very late.

The Full Court held that the father’s lack of preparation was the result of his own choices and delay, not procedural unfairness.

3. The Court identified the proper s 102NA adjournment framework

This is the most useful part of the decision. The Full Court set out practical considerations for adjournment applications where s 102NA prevents personal cross-examination. The relevant factors include:

1. whether the litigant had a reasonable opportunity to obtain representation, including enough time to access the legal aid scheme;
2. whether lack of representation was caused by matters beyond the litigant’s control, rather than their own delays or forensic choices;
3. the impact of adjournment on the other parties, including financial cost and stress; and
4. the impact on the litigant’s ability to present their case or challenge the other party’s case if the adjournment is refused.

The father failed on those factors. The s 102NA order had been made well before trial. The evidence showed he initially chose private representation rather than using the legal aid scheme. He applied, or at least requested, legal aid too late. There was no evidence that the late appointment of the solicitor was beyond his control or had a reasonable explanation.

4. The primary judge took steps to reduce disadvantage

The Full Court also considered how the primary judge managed the hearing after refusing the adjournment.

The judge stood the matter down to the following day so the father’s solicitor could obtain instructions. The parties then agreed that the ICL would cross-examine first, giving the father’s solicitor further time before cross-examining the mother. The father’s solicitor then cross-examined the mother.

Those steps mattered. They showed the trial was actively managed to reduce practical disadvantage. The father did not identify any specific failure by the solicitor that affected the final result.

5. s 102NA does not mean a party must be represented for the trial to be fair

The Court drew an important line. It would be wrong to treat s 102NA as meaning that a party must always be represented for a fair trial to occur. A party can still appear unrepresented; the limitation is that they cannot personally cross-examine the protected witness.

Where the s 102NA order is made sufficiently before the hearing, the party must take timely steps to arrange representation or apply under the legal aid scheme. A belated legal aid application will rarely justify an adjournment where the delay is the party’s own responsibility.

That is the key distinction from cases where the party is genuinely left unable to cross-examine through circumstances beyond their control.

6. The holiday-time “agreement” argument failed

The father also argued that the primary judge erred by not ordering five nights per fortnight during school holidays immediately, allegedly contrary to the parties’ agreement.

The Full Court rejected that argument. In parenting proceedings, the Court is not bound by party agreement. The orders must be those the Court considers in the child’s best interests.

The Court also found there was no formal consent order. There were concessions made in final addresses, but the real issue was whether the five-night arrangement should start immediately or be introduced progressively. That question remained for the primary judge.

7. The gradual increase was adequately explained

The primary judge had found that the father presented psychological and emotional risk to the child, that the mother was a victim survivor of family violence, and that the child needed to be established safely in the mother’s household.

Against that background, the moratorium and gradual increase in the father’s holiday time made sense. The Full Court held that the reasons were adequate: the judge wanted to stabilise the child after a significant change of primary care and then increase time progressively.

It was not unreasonable for the primary judge to prioritise stability and safety over an immediate jump to the holiday regime the father preferred.

Conclusion

The appeal was dismissed.

The father failed to establish procedural unfairness in relation to the admission of the audio recordings, the refusal to adjourn the final hearing, the impact of s 102NA, or the progressive holiday-time orders.

The Full Court held that the father had been given a reasonable opportunity to arrange representation and present his case. His lack of preparedness arose from his own choices and delay. The parenting orders remained in place.

The father was ordered to pay the mother’s costs fixed at $13,723.60 and the ICL’s costs fixed at $7,764.

🧠 Take-Home Lesson

This case is an important counterpoint to adjournment appeals involving s 102NA. The existence of a personal cross-examination prohibition is serious, but it does not automatically make a trial unfair if a party’s representation falls apart.

The winning or losing question is practical: did the party have a reasonable opportunity to arrange representation in time?

Here, the answer was yes. The father knew about the s 102NA order months before trial, changed lawyers repeatedly, was warned that trial would not be vacated because of lawyer changes or lack of preparedness, and applied for legal aid too late. That made the problem his own forensic consequence, not a procedural fairness denial.

The case also shows that late-disclosed family violence recordings may still be admitted where they are probative, the late disclosure is explained, and the other party is given a real opportunity to respond.