FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raich & Raich [2024] FedCFamC2F 1215
File number(s): MLC 9895 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 28 August 2024 Catchwords: FAMILY LAW – Property – Where wife alleges substantial failure to disclose by husband – Husband unrepresented – Application for adjournment in circumstances where husband recently became unrepresented – Not infrequent difficulties with section 102NA representation in this court – Unintended consequences of section 102NA – Decision not to proceed undefended – Final hearing adjourned to allow appointment of another solicitor for husband by Legal Aid Victoria – Not insignificant volume of documents and material to be prepared – Costs thrown away by reason of adjournment fixed but to be determined at final hearing. Legislation: Family Law Act 1975 (Cth) ss 79, 102NA Cases cited: Filipovic & Filipovic (No 3) [2024] FedCFamC2F 249
Kowaliw & Kowaliw (1981) FLC 91-092
Middleton & Redmond [2021] FCCA 316
Su & Chang [1999] FamCA 1203
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 28 August 2024 Place: Melbourne Counsel for the Applicant: Mr Fudim Solicitor for the Applicant: Accord Family Law The Respondent: In Person ORDERS
MLC 9895 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RAICH
Applicant
AND: MR RAICH
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
28 AUGUST 2024
THE COURT ORDERS THAT:
Adjournment
1.The matter be adjourned to Thursday, 27 March 2025 at 10.00am (for an estimated 2 days) with priority.
2.All extant applications be and are adjourned to the above date and the parties must appear personally on that date.
3.The Applicant, MS RAICH (‘the Applicant’) costs of this day thrown away are fixed in the sum of $10,592 and a further issue to be determined at the adjourned hearing is whether the Respondent, MR RAICH (‘the Respondent’) should pay those costs thrown away.
Section 102NA
4.It is declared that pursuant to section 102NA(1)(c)(ii) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the Applicant Wife, MS RAICH and the Respondent Husband, MR RAICH are prohibited from personally cross-examining the other in these proceedings.
5.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Respondent Husband, MR RAICH under the Commonwealth Family Violence and Cross Examination of Parties Scheme
6.For the purpose of order 3 hereof, the Respondent Husband, MR RAICH do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his/her legal representation at Final Hearing.
7.In the event that a solicitor is appointed pursuant to the Section 102NA Family Violence scheme, then such solicitor is requested to confer with the Respondent Husband, MR RAICH on a face-to-face basis, unless there is good and substantial reason this cannot occur.
Trial directions
8.The Respondent is to file and serve his trial material which he…
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CaseChat Overview and Summary
The court considered the difficulties associated with section 102NA representation, which had unintended consequences in this case. Given the recent unrepresented status of Mr Raich and the volume of documents and material to be prepared, the court decided not to proceed undefended. The final hearing was adjourned to allow for the appointment of another solicitor for Mr Raich by Legal Aid Victoria under the Commonwealth Family Violence and Cross Examination of Parties Scheme. The court also noted that the costs of the day were thrown away but would be determined at the final hearing. The decision underscored the importance of ensuring proper legal representation and the duty of full and frank disclosure in family law proceedings.
The orders included an adjournment of the matter, a declaration regarding the application of section 102NA, and specific directions for filing trial material and providing disclosure information. The court also noted the ongoing duty of disclosure and the prohibition on personal cross-examination in the event of family violence allegations. The parties were given liberty to apply for further orders if certain conditions were met. The form of the order was subject to review and variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The court's decision was focused on ensuring that Mr Raich had appropriate legal representation and that both parties complied with their disclosure obligations. The adjournment aimed to address the immediate issue of representation and allow for proper preparation of the case. The court's approach was practical, aiming to balance the need for timely resolution of the dispute with the rights and obligations of both parties under the Family Law Act 1975 (Cth).
Orders
Orders of the court
MLC 9895 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS RAICH
Applicant
AND:
MR RAICH
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
28 AUGUST 2024
THE COURT ORDERS THAT:
Adjournment
1. The matter be adjourned to Thursday, 27 March 2025 at 10.00am (for an estimated 2 days) with priority.
2. All extant applications be and are adjourned to the above date and the parties must appear personally on that date.
3. The Applicant, MS RAICH (‘the Applicant’) costs of this day thrown away are fixed in the sum of $10,592 and a further issue to be determined at the adjourned hearing is whether the Respondent, MR RAICH (‘the Respondent’) should pay those costs thrown away.
Section 102NA
4. It is declared that pursuant to section 102NA(1)(c)(ii) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the Applicant Wife, MS RAICH and the Respondent Husband, MR RAICH are prohibited from personally cross-examining the other in these proceedings.
5. IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Respondent Husband, MR RAICH under the Commonwealth Family Violence and Cross Examination of Parties Scheme
6. For the purpose of order 3 hereof, the Respondent Husband, MR RAICH do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his/her legal representation at Final Hearing.
7. In the event that a solicitor is appointed pursuant to the Section 102NA Family Violence scheme, then such solicitor is requested to confer with the Respondent Husband, MR RAICH on a face-to-face basis, unless there is good and substantial reason this cannot occur.
Trial directions
8. The Respondent is to file and serve his trial material which he seeks to rely upon at the Final Hearing on or before 4pm on Monday, 9 December 2024.
9. The Applicant is to file any material responding to the Respondent’s trial material on or before 4pm on Wednesday, 19 February 2025.
10. The Respondent is to provide all relevant information and documentation that is necessary to comply with his duty of full and frank disclosure and provide corroboration and support for whatever his explanation is of the substantial money alleged to have been received by him to the Applicant on or before 4pm on Monday, 25 November 2024.
11. Any Outline of Case for the Final Hearing is to be filed on or before 4pm on Thursday, 13 March 2025, with the Applicant at liberty to rely on her Outline of Case filed 21 August 2024.
Liberty
12. The parties be at liberty to apply on short notice by email to the Chambers of Judge O’Shannessy in the event of the sale and/or the settlement of the sale of the B Street, Suburb C property occurs prior to the adjourned date, and in that event the parties be at liberty to rely on previously filed material.
13. The parties be at liberty to provide these orders and the reasons therefor (when settled) to Victoria Legal Aid and/or any other legal/accounting advisor.
AND THE COURT NOTES THAT:
A. The duty of disclosure is ongoing and both parties have the obligation to provide information on an ongoing basis.
B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C. In the event the Respondent fails to comply with these orders, the Applicant may seek to proceed on an undefended basis.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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