Bauer & Nolan (No 3)
[2023] FedCFamC1F 54
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bauer & Nolan (No 3) [2023] FedCFamC1F 54
File number(s): WOC 1022 of 2019 Judgment of: CHRISTIE J Date of judgment: 10 February 2023 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – APPLICATION TO ADJOURN – where the matter was part heard – where the applicant seeks to adjourn the final hearing dates due to injury – where the respondent objects to an adjournment in circumstances where the matter has been in the Court since 2019 – where there would be prejudice to the respondent if the matter were to be adjourned – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 5.13. Division: Division 1 First Instance Number of paragraphs: 26 Date of last submission/s: 9 February 2023 Date of hearing: Heard on the papers Place: Sydney Counsel for the Applicant: Mr Wong Solicitor for the Applicant: Heard McEwan Solicitor for the Respondent: Access Law Group ORDERS
WOC 1022 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NOLAN
Applicant
AND: MS BAUER
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
10 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 1 February 2023 is dismissed.
2.The applicant is excused from personal attendance at the hearing and is granted leave to appear via Microsoft Teams.
3.The applicant and respondent (if she so elects) provide to the single expert geriatrician, Dr K, and the single expert occupational therapist, Ms L, a proposed tender bundle of any documents relevant to the applicant’s scheduled surgery.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Bauer & Nolan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an Application in a Proceeding brought by the applicant (the respondent in the substantive proceedings), Ms Nolan (“the applicant”), to vacate hearing dates on 13 and 14 February 2023.
The Application is opposed by the respondent (the applicant in the substantive proceedings) Ms Bauer (“the respondent”).
The background to the matter is that the parties are presently part heard in final financial proceedings with the expert evidence due to be given in respect of medical issues and issues in respect of valuation and town planning.
EVIDENCE
The applicant relies on an affidavit filed 1 February 2023. Shortly before this matter came before me, a further letter from the applicant’s general practitioner was sent to chambers. That document provided details about the applicant’s injury. Notwithstanding the respondent has not had the opportunity to make any submissions about its content, I propose to permit its tender.
The respondent relies on paragraphs [1] – [5], [273] – [282], [285] – [289] and [301] – [306] of her affidavit filed 20 October 2022.
The respondent has taken formal objection to parts of the applicant’s evidence in so far as the applicant purported to give evidence of the opinions of Dr M (an orthopaedic surgeon) in [23] – [27] of her affidavit. These are interlocutory proceedings. Section 75 of the Evidence Act 1995 (Cth) permits the receipt of the evidence and I will read those paragraphs.
Each party has filed written submissions and each party agreed that the matter could be determined without the need for an appearance in compliance with the provisions of r 5.13(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
CONSIDERATION
Rule 1.04 of the Rules requires the Court, in considering applications of this nature, to have regard to the need to conduct litigation as quickly, inexpensively and efficiently as possible.
Parts 3.3 and 3.4 of the Central Practice Direction – Family Law Case Management draw the Court’s and the parties’ attention to the need to achieve quick and efficient disposal of matters before the Court:
3.3 The overarching purpose to be achieved is to facilitate the just resolution of disputes:
a. according to law; and
b. as quickly, inexpensively and efficiently as possible.
3.4 The overarching purpose includes the following objectives:
a. the just determination of all proceedings before the Court;
b. the efficient use of the judicial and administrative resources available for the purposes of the Court;
c. the efficient disposal of the Court's overall caseload;
d. the disposal of all proceedings in a timely manner;
e. the resolution of disputes at a cost and by a process that is proportionate to the importance and complexity of the issues in dispute.
These proceedings have been on foot since September 2019.
The Application seems to have been brought on two bases:
(1)The need to bring further evidence; and
(2)The disadvantage of the trial proceeding, to the applicant, given her current circumstances.
The applicant injured herself in late 2022. Her affidavit indicates she suffered the injury during the previous hearing dates. It follows that she was giving evidence and instructions immediately following the injury. She says the injury has resulted in diminished function in her injured body part and pain. She is scheduled to have surgery in early 2023. She has paid the surgeon $6,006 as “prepayment”. She says the recovery period will be 17 weeks.
The applicant lives in the City N region. The original days of hearing could not be accommodated in the regional registry of this Court and so the matter commenced in Sydney and did not conclude in the allocated time.
It is not plain whether the applicant seeks to lead evidence by Dr M at trial or whether she was seeking a medical report from him in aid of her adjournment application. As the evidence reveals, he was not able to prepare a report before this date.
Dealing with the first of the bases – a need for further evidence; it is my view that, given the ages of each of the parties and the medical histories as set out in the affidavit material each has filed, adjournments which relate to ongoing medical issues raise a real question of when this matter will be finally determined.
There is a single expert occupational therapist and geriatrician due to give evidence in this case. Those persons will be well placed to answer any questions which relate to the surgery. I will make directions that they be provided with a proposed tender bundle of any documents relevant to Ms Nolan’s scheduled surgery.
There is no Application before the Court to rely on further affidavit evidence other than single expert evidence. I reject that as a basis for adjournment.
The second basis of the application to vacate which appears agitated on behalf of the applicant, is the contention, at [8] of her submissions, that she is “acutely unwell”. It is said that she is not in a position to travel and, by way of submission, not in a position to appear by Microsoft Teams.
The medical evidence, such that it is, falls short in my view of establishing that she lacks the capacity to give instructions. I accept that she may not be comfortable, or indeed able to travel, but she ought to be able to continue to participate in the hearing by Microsoft Teams.
The most significant piece of evidence in support of that conclusion is to be found in the applicant’s own material where her general practitioner, Dr O, said in early 2023 “[i]t would be beneficial to [Ms Nolan] if any pending meetings/hearings could be held in [City N]”. I find that the medical evidence speaks against travel to Sydney. That can be accommodated by the applicant remaining in her own home with those facilities she has set up to accommodate her current circumstances.
I have considered whether there is any disadvantage to the applicant in not being physically present at the hearing, but I find there is no practical disadvantage given the available technology. This is particularly the case in circumstances where both she and her former partner have already given evidence and been cross-examined. The necessity for her to provide instructions to her lawyers in respect of cross-examination of the experts is considerably less than what would be required were the matter to be concerned with the lay evidence of the parties.
On the schedule for surgery and recovery time, which the applicant sets out in her material, it would appear as though she would be unable to participate in a hearing until approximately 18 July 2023. She then, at that time, seeks a mention – the effect of that timetable and the other matters awaiting hearing in this Court mean it would be most unlikely this matter would be allocated hearing dates before 2024. This is unsatisfactory for both parties.
In circumstances where both the applicant and the respondent are of mature years and the submissions filed on behalf of each of them suggest that each suffers from various health difficulties, one of the things the Court needs to consider is whether or not adjournment of the proceedings will mean that the proceedings are able to be completed on a subsequent date or whether or not there are likely to be ongoing complications.
The respondent’s own evidence sets out similar difficulties experienced by her in respect of her own health including severe pain at night and trouble sleeping.
If I had formed the view that there would be a substantial injustice to the applicant in requiring that the expert evidence proceed with her appearing electronically then I would have no choice but to adjourn the matter and vacate the hearing dates. However, I must balance a number of factors and have done so:
(1)Whether or not the applicant’s lawyers are able to take instructions;
(2)Finalising the matter to the benefit of both the applicant and the respondent;
(3)Prejudice to the respondent in not finalising the matter;
(4)Balancing the Court’s requirement to deal with matters efficiently; and
(5)Balancing the requirement for other litigants within the system to obtain hearing dates.
Having regard to all of the above matters, the hearing will proceed on 13 and 14 February 2023.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 10 February 2023
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