Righi & Fylan (No 2)

[2025] FedCFamC1F 309

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Righi & Fylan (No 2) [2025] FedCFamC1F 309

File number(s):

SYC 9000 of 2022

Judgment of:

SIMPSON J

Date of judgment:

26 February 2025

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – litigant in person – procedural fairness – application to discharge s 102NA order dismissed – application to adjourn final hearing granted.

Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth) s 102NA

Cases cited:

RCB v The Honourable Justice Forrest (2012) 247 CLR 304

Re F: Litigant In Person Guidelines [2001] FamCA 348

Storstrand & Storstrand [2024] FedCFamC1A 128

Division:

Division 1 First Instance

Number of paragraphs:

20

Date of hearing:

26 February 2025

Place:

Sydney

Counsel for the Applicant:

Initially Ms Bateman and thereafter the Applicant in person

Solicitor for the Applicant:

Initially Gad & Co Lawyers and thereafter the Applicant in person

Counsel for the Respondent:

Ms Chauvet

Solicitor for the Respondent:

SCB Legal Pty Ltd

For the Independent Children's Lawyer:

The Independent Children’s Lawyer’s appearance was excused

ORDERS

SYC 9000 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RIGHI

Applicant

AND:

MR FYLAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SIMPSON J
DATE OF ORDER:	26 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The oral application made by the mother to discharge the s 102NA order dated 29 November 2024 is dismissed.

2.The oral application made by the mother to adjourn the continuation of the final hearing is granted.

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Righi & Fylan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

SIMPSON J:

1. These reasons were delivered orally. Transcript was obtained and revised to correct for grammatical errors or slips, and otherwise to make the written word more amenable to the words spoken when judgment was delivered.

   BACKGROUND

2. On the morning of day three of the final hearing between Ms Righi (“the wife”) and Mr Fylan (“the husband”), counsel for the wife sought to withdraw from the proceedings, along with her instructing solicitor, in circumstances where the wife had –  either that morning or overnight – filed a Notice of Address for Service for herself and had indicated an intention to be self-represented. 

3. Counsel and her instructing solicitor were granted leave to withdraw from the matter.

4. I observed to the wife that a section 102NA order was in place, which had been made on 29 November 2024, and that the order was protective in nature. I further observed that the Cross-Examination Scheme was created to ensure that people who had asserted that they had been exposed to family violence by the other party would not experience cross-examination by the alleged perpetrator, or in circumstances where they did not have a lawyer, be required to cross-examine that person themselves.

5. I advised the wife that while that order remained in place, she would not be permitted to cross-examine her former husband.  I invited her to obtain legal advice, and the matter was stood down to enable that to occur.  When the matter resumed later that morning, the wife had been able to meet with a duty lawyer at the Court. 

6. I advised the wife that I had certain responsibilities to her as a self-represented party – to give her information about procedure and steps in the process and about options available to her. In accordance with Re F: Litigant In Person Guidelines [2001] FamCA 348 (“Re F”), I indicated to the wife that she could make a number of applications this day – which I would consider – including to seek to discharge the section 102NA order and, or, to seek an adjournment of the balance of the final hearing.

7. The wife indicated that she sought to make both applications.  She advised the Court, among other things, that in support of those applications, she had prepared her own court documents and schedules and was familiar with the documents which she considered relevant to the issues.  She sought to be able to cross-examine the husband to challenge his evidence, and without cross-examination, she would be denied the opportunity to put her best case forward. 

8. The wife submitted that:

   (a)She had not received any of the trial material from her previous lawyers; 

   (b)She had accessed material for the final hearing from the Court portal herself;

   (c)She had not received the husband’s list of objections to her trial documents;

   (d)She had not received the proposed tender bundle prepared by the husband and his legal advisers;

   (e)She had not seen an updated balance sheet which she understood may have been prepared by the husband’s legal representatives; and

   (f)She had not received any advice from her previous solicitors or counsel, and she had first met her barrister on 17 February 2025, before an interim hearing which occurred that day.

9. The wife also sought additional time to prepare the financial matter, given the deficiencies in the preparation to date.  She indicated that she was able to attend the Court on other dates in the future and proposed to be back in this country, certainly at this stage, in April 2025.

10. Ms Chauvet, on behalf of the respondent husband, opposed the discharge of the section 102NA order in circumstances where her client asserted in his evidence conduct by the applicant wife which could be characterised as family violence, including as detailed in paragraphs 71 and 72 of his trial affidavit. The husband sought the continuation of the protections afforded to him under the section 102NA order.

11. I note that the husband is in receipt of Commonwealth benefits at this time and Ms Chauvet submitted that if the section 102NA order was discharged, it would be unlikely that her client would be able to readily secure alternate legal representation.

12. I also note that the section 102NA order was made when both parties appeared before the Court as litigants in person and it was made in accordance with the discretionary pathway available under that provision.

13. After obtaining further instructions, the husband's counsel indicated that the adjournment was not opposed if the section 102NA order remained in place.

    CONSIDERATION

14. I take into account the following matters.

15. The parenting aspect of the proceedings is reserved.  Submissions on the parenting issues concluded at the end of the second day of the final hearing in circumstances where the parties had indicated that only a few issues remained in dispute between them.

16. The property matters remaining before the Court have some complexity, and the wife has indicated that she has not been provided all the material to be relied upon.  I explained to her the application of the Evidence Act1995 (Cth) in the property proceedings; that it was likely and proper for the husband’s counsel to object to certain parts of her evidence; and that if those objections were upheld, certain parts of her affidavit may not remain before the Court and other documents which she hoped to produce to the Court may not be admitted into evidence.

17. The matter was prepared for hearing very late, in circumstances where it appears each party only received their respective solicitors and counsel under the section 102NA scheme shortly before the final hearing. Trial documents were filed very late, certainly outside the trial directions that had been made in this matter, and in some instances those documents were filed on the Friday evening before the commencement of the final hearing on the Monday, or on the morning of the first day of the final hearing.

18. I have regard to the principles or the guidelines set out by the Full Court in Re F.  I also recognise that a hearing and determination of issues in dispute between the parties needs to be procedurally fair and that such is an essential component of an orderly and just disposition of the matter (see RCB v The Honourable Justice Forrest (2012) 247 CLR 304 as cited by Christie J in Storstrand & Storstrand [2024] FedCFamC1A 128).

19. On balance, the interests of justice require the continuation of the section 102NA order (as sought by the husband); that order would preclude the wife from being able to cross examine the husband, which would severely impact her engagement in these proceedings. On balance, it is appropriate for the adjournment to be granted to enable the wife to have additional time to attempt to secure legal representation and to prepare her case for hearing.

20. Accordingly, I make the orders as set out herein.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Simpson.

Associate:

Dated:       12 May 2025