Hong & Lai [2026] FedCFamC1A 28 (4 March 2026)

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, Hong & Lai, has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application by the appellant, the applicant in proceedings before the primary judge, to dispense with the requirement to provide a transcript of the final hearing before the primary judge or alternatively for the court to provide the transcript.

1. On 5 December 2023 the appellant filed an application seeking property settlement orders following the breakdown of the parties' de facto relationship.
2. The final hearing of the proceedings was conducted over two days: 25 September 2025 and 4 December 2025. Only the appellant and the respondent were witnesses. On the first date both parties were represented by counsel and the appellant was cross‑examined for a number of hours. Late in the afternoon of the first day the primary judge said that he was unable to conclude the hearing as he had been double listed with a parenting case that was also proceeding. The balance of the hearing was adjourned to 4 December 2025. At the time of the adjournment the appellant's cross-examination had not yet been completed.
3. On 4 December 2025, the appellant was unrepresented (despite having earlier received a grant of aid pursuant to the Commonwealth Family Violence and Cross-examination of Parties Scheme as a result of an order having been made under s 102NA). The order made under s 102NA prevented the appellant from cross-examining the respondent personally. Thus the respondent could not be cross-examined by the appellant unless it was by a lawyer representing him.
4. The primary judge delivered ex tempore reasons dismissing the appellant's oral application for an adjournment of the part-heard final hearing and proceeded with the hearing, despite the appellant being precluded from cross‑examining the respondent: Hong & Lai [2025] FedCFamC2F 1833. After completing the hearing the primary judge then delivered ex tempore reasons on the same day dismissing the appellant's application for property settlement orders, having accepted the respondent's version of events that led to a finding that the de facto relationship of the parties ended in April 2011. As a result, the primary judge found that the proceeding was brought out of time. The primary judge declined to extend the relevant time limit pursuant to s 44(6) of the Family Law Act 1975 (Cth): see Hong & Lai (No 2) [2025] FedCFamC2F 1834.
5. On 24 December 2025, a Notice of Appeal was lodged appealing against the Orders made 4 December 2025. On 6 February 2026, a registrar made Orders for the preparation of the appeal. The appellant was present and appeared as an unrepresented litigant before the registrar. By way of an email from the National Appeal Registry Sydney on 12 February 2026, the appeal was set down before me sitting as a single judge for hearing on 16 April 2026.
6. The Orders made 6 February 2026 note that the National Appeal Registry was in possession of the transcript for the first day of the final hearing, being the transcript of 25 September 2025. An Order was made for the appellant to obtain the transcript of 4 December 2025 by 27 February 2026.
7. On 20 February 2026, the appellant filed an Application in an Appeal seeking that the requirement for the appellant to obtain and file the digital transcript of the proceedings on 4 December 2025 be dispensed with, or such other order as is appropriate.
8. I have previously set out the relevant law in Marsters & Radcliffe [2023] FedCFamC1A 231 at [9]-[11]:
   1. In Forbes & Bream [2008] FamCAFC 189; (2008) 222 FLR 96, the Full Court (per Bryant CJ, Boland and Stevenson JJ) noted that the Court had "from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so" (at [28]) saying that "[i]t has been assumed (without ever being decided) by this court in several cases that such a discretion exists" (at [31]). Their Honours considered that in addition to the "supervisory power of the Court" (see Fortnum & Fortnum (No 2) [2008] FamCAFC 73, per Finn J), the Court may provide the transcript of relevant parts of a matter as an incidence of the exercise of its powers to fulfil the statutory function set out in the appeal provisions (at [35]). However, it was noted that the power was unlikely to be exercised in "anything other than exceptional cases" (at [36]). Significantly, the government funds legal aid agencies to assist with court applications and does not fund the Court to provide transcripts for parties on appeal.
   2. In Sampson & Hartnett (2013) FLC 93-542, the appellant mother asked the Court to provide the transcript of a 14-day hearing as she said that she could not afford to obtain a copy from the transcription service. The Full Court identified a number of factors which may be relevant in support of an application (at [16]):

a) Whether the case is a financial or parenting case; > > b) Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal; > > c) The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript; > > d) The proportionality of the cost of the transcript to the appellant's anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s); > > e) The prima facie merits of the appeal; > > f) Whether the question of providing a transcript can be left to the Full Court hearing the appeal; > > g) Any other relevant facts or circumstances.

3. There is no doubt that the Court has the power to dispense with the requirements of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), including that which requires the appellant to provide the transcript (r 1.31).
4. As previously indicated, the present appeal is an appeal concerned with a de facto financial proceeding.
5. The appellant has identified that the early parts of the transcript of 4 December 2025 are relevant to his claims as he says that he sought an adjournment to allow for the review of his grant of legal aid to be completed. English is not the appellant's first language.
6. As the appellant is unrepresented, the transcript is the only significant cost that he must incur to pursue the appeal.
7. The appellant sets out in his affidavit in support that he obtained a quotation from the court's transcript provider for the 4 December 2025 transcript; the quoted cost of the transcript for a single day of hearing is in excess of $2,300.
8. The appellant says that he is a concession card holder who relies on social security payments and does not have the financial means nor accumulated savings to meet the expense of the transcript. Whilst he owns a modest real property, it has a significant mortgage and he can only meet the mortgage repayments by renting the property to others and living in cheaper accommodation himself. In any event he could not realise the small amount of equity in time to meet the transcript cost before the appeal hearing. On the appellant's case he will be unable to pursue the appeal if not granted relief from the order that he provide the transcript.
9. The appellant has arguable grounds of appeal. The appellant complains (in Ground 1) that he had lodged a review of the termination of his grant of funding with Legal Aid NSW. The primary judge did not discuss s 57 of the Legal Aid Commission Act 1979 (NSW) which provides:

57 Adjournment of certain proceedings

Where it appears to a court or tribunal, on any information before it -

(a) that a party to any proceedings before the court or tribunal -

(i) has appealed, in accordance with section 56, to a Legal Aid Review Panel and that the appeal has not been determined, or

(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Panel and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

1. It is unclear whether it is apparent from the course of the argument that s 57 did not apply. This may be apparent from the transcript.
2. The primary judge also discusses the appellant's lack of representation as being the result of the appellant having "voluntarily terminated" his legal representation, however the appellant says that his grant of funding was terminated by Legal Aid NSW. It is unclear what case he put in this respect to the primary judge at the hearing.
3. The lack of representation potentially resulted in a lack of procedural fairness as the effect of orders pursuant to s 102NA meant the appellant was prevented from cross-examining the respondent in a case where the primary judge had previously concluded that summary dismissal during the appellant's cross-examination was not appropriate due to the possible outcome of cross‑examination of the respondent (Transcript 25 September 2025, pp.80-81). In substance cross-examination of the respondent at the final hearing was essential to the appellant's case. As the High Court explained in Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, in the context of a summary judgment application (at 603):

Nowhere is [the] need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that "great care ... be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his (or her) opportunity for the trial of his (or her) case by the appointed tribunal" (General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR, at p.130; see, also, Church of Scientology v. Woodward [1982] HCA 78; (1982) 154 CLR 25, at p.31.).

1. This case involved only the parties as witnesses concerning the extent of their personal relationship. The fact that the final hearing proceeded without cross-examination of the respondent left the appellant with no practical means of challenging the respondent's affidavit evidence. Prima facie the appellant was denied procedural fairness. If that was the consequence of a free choice made by the appellant (in the context of the order pursuant to s 102NA) or the natural consequence of the legislation he may have little recourse. However, if it was a situation thrust upon him by an adverse Legal Aid decision or failures of lawyers he had instructed, an adjournment may have been necessary to ensure procedural fairness at the final hearing.
2. I am persuaded that this case falls within the exceptional category where it is appropriate for the court to obtain a copy of the transcript of the proceedings on 4 December 2025 to ensure a real review is undertaken on appeal.
3. Neither party was represented at the hearing of this application and therefore I make no order for costs with respect to this Application in an Appeal.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.