Haines & Rader (No 2)
[2022] FedCFamC1F 685
•6 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Haines & Rader (No 2) [2022] FedCFamC1F 685
File number(s): SYC 1641 of 2019 Judgment of: BRASCH J Date of judgment: 6 September 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where adjournment of trial requested by emails – Where picture of Rapid Antigen Test stick provided – Where medical certificate referred to work and a medical condition – Where evidence insufficient – Where Magjarraj & Asteron Life [2009] NSWSC 1433 referred to. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.10(1)(b)
Family Law Act 1975 (Cth) s 102NA
Cases cited: Cheung& The Queen [1991] ALJR 1093
Emmett & Emmett [1982] FLC 91-212
Magjarraj & Asteron Life [2009] NSWSC 1433
Queensland & JH Holdings [1997] 189 CLR 146; [1997] HCA 1
Division: Division 1 First Instance Number of paragraphs: 55 Date of hearing: 6 September 2022 Place: Sydney Counsel for the Applicant: Mr Richards Solicitor for the Applicant: Dettmann Phair Lawyers Counsel for the Respondent: Litigant in person (did not participate) ORDERS
SYC 1641 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAINES
Applicant
AND: MR RADER
Respondent
order made by:
BRASCH J
DATE OF ORDER:
6 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Insofar as the husband moves the Court, by email, to adjourn the trial, such requests are dismissed.
2.Both the husband and wife will be provided with the transcript of the trial by the Court, and:
(a)Upon it being sent by the Court to the husband’s email address known to the court, the husband has 14 days thereafter to file and serve written submissions to the court; and
(b)Upon the husband providing any such written submissions within that 14 days, the wife has 14 days to file and serve any reply.
THE COURT NOTES THAT:
A.The effect of Order 1 is that the trial will proceed today.
B.In the event the husband does not file any such written submissions within the 14 days, the court intends to move to judgment, when Her Honour Justice Brasch can thereafter.
C.Should the wife file written submissions in reply, then, again, Her Honour will move to judgment, when she can thereafter.
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 of Haines & Rader has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my reasons taken from the transcript and corrected only for any grammatical errors, and to make my oral reasons more amendable to the written word.
This is essentially an application of some form by the respondent husband to adjourn the trial in this matter. It will become apparent in due course why I say, “an application in some form”. Importantly, to understand my reasons, some detailed chronology needs to be given about this matter. Before I proceed with that chronology, I confirm that my associate has called the respondent husband three times outside of Court and confirmed there was no appearance from him. At the bar table now is counsel for the applicant wife, his instructor and the applicant wife. Mr Q, who had been solicitor on the record for the father, was excused from further attendance.
I turn to the chronology relevant to where we find ourselves now. On 8 August this year, at about 4.45 pm, an email was sent from my chambers to the parties, notifying them the matter was listed for case management on 22 August. On 15 August of this year, at 4.08 pm, a Request to Attend (that Case Management Hearing) by Electronic Communication was filed by the husband’s solicitor. It was forwarded to the docket registrar by Sydney filings. That Request made its way to my chambers on 17 August at about 12.49 pm. It was proposed that for the Case Management Hearing, that the arrangement proposed, was the husband “will be at his office”, which I take to be a reference to Mr Q’s office, “with his mobile telephone available to dial into Court at the Court’s request”. If I am wrong on the office being Mr Q, then nothing really turns on that. The form was signed by Mr Q, the solicitor on the record for the husband. The reasons given in that Request for the Case Management Hearing were these:
Risk of family violence.
There is a current ADVO protecting the husband from the wife. There has been recent family violence in the form of harassment in early 2022 which forms a pattern of behaviour on the part of the wife, particularly at Court events. Please see husband’s affidavit dated 4 December 2020, an historical one, at paragraphs 23, 26, 32, 51 to 58, 261 to 269.
The quote goes on:
The husband has been diagnosed with PTSD as a result of the wife’s family violence.
On the same day, at 4.40 pm, an email was sent from chambers to all practitioners noting the Request to Attend by Electronic Communication that had been filed on behalf of the husband for the Case Management Hearing. It was said in that email that it would not be referred to me until the response from the other side was provided as per question 13 of that Request form.
At 4.51 pm, an email was received from the wife’s solicitor objecting to the husband’s request to attend electronically. At 5.05 pm, an email was sent from chambers to practitioners noting the wife’s objection to the husband appearing electronically, but granting the Request for him [the father] to attend the Case Management Hearing electronically, on the basis that the husband’s solicitor would appear in Court in person, at the Case Management Hearing.
On 19 August – and all references are to this year – 19 August at about 3.34 pm, the husband filed [an] affidavit that had been sworn by Mr Q under the COVID arrangements, listing his location as Sydney. At about 3.38 pm, the husband filed his financial statement, which was sworn in accordance with the COVID measures, again by Mr Q, the husband’s solicitor, again, listing his location as Sydney.
On 22 August 2022, at 10.30am, the Case Management Hearing was held before me. Mr Q was in Court in person. Ms Giacomo of counsel appeared for him [the husband]. The father was online. The matter was listed for trial on 6 and 7 September [2022]. Notation B to my order of 22 August clearly provided the hearing would occur in person. There was no mention at that hearing of any difficulties of any person attending in person. There was no mention of Mr Q being in Melbourne.
On 24 August, at 11.04 am, the husband filed his subpoena to Organisation R and S Pty Ltd, which were returnable before me yesterday, 5 September, at noon.
On Sunday, 28 August, at 9.54 pm, a Request to Attend by Electronic Communication was emailed personally by the husband, for the trial, at [email protected] attaching what he said was a current ADVO against the wife. Despite having a solicitor still on the record at that point, the husband’s personal email gives this reason:
I have grave concerns attending the Court in person next week given the history of intimidation and violence by my ex-wife and her associates and specifically whilst at Court events in both the family and local courts.
The proposed arrangements were these:
The respondent will be at his office –
it is not clear whose office –
with his mobile and available to dial into Court at the Court’s request.
The wife opposed the husband’s electronic attendance and gave a range of reasons, which I do not need to go into now.
Thursday, 1 September, so only Thursday just gone, chambers sent an email to the parties’ legal representatives, denying the husband’s Request that he attend for the trial electronically and suggested that the husband approach the registry for a safety plan. I have no evidence before me that he had done that. A compliance check email was [also] sent, requesting a response by 2 pm [Friday]. No response was received from Mr Q. There was certainly nothing raised either about difficulties about the matter being in person.
Friday just gone, 2 September, at 10.56 am, the husband filed his Evidence-in-Chief per the COVID provisions, [executed] by Mr Q in Sydney. The next thing that happened on that day was objections were filed by two third parties to the subpoena issued by Mr Q for the husband. I listed the objections to those subpoena at 5 September at noon in person, as I have already mentioned.
Also happening on that day was, so Friday just gone, at 9.30 am, the husband personally – and I again note he still had a solicitor on the record then – emailed chambers, seeking an adjournment due to COVID and indicated that he was “standing down his lawyers to save costs”. There was no application or affidavit to adjourn filed. The email attached an apparent confirmation of registration of the husband’s alleged COVID result with Service NSW, but not any PCR tests referable to the husband. In that email, the husband said he was sick. He also raised whether the matter ought be set down for two days as it was or six days, but that matter had been ventilated in earlier hearings, including the compliance check before me.
At 11.13 am, chambers sent Mr Q an email, asking for proof of an actual positive result for COVID and advising that the request for the adjournment was not in the proper form. I see that was included in the wife’s affidavit, or that of her solicitor, filed this morning at annexure B.
At 12.35 pm on the same day, Mr Q emailed chambers, seeking permission to withdraw pursuant to rule 3.10(1)(b), saying he did not hold instructions. At 1.28 pm, chambers responded to Mr Q – and, of course, all emails at least from my chambers are including all parties’ legal representatives, I pause to add – responded to Mr Q, saying it was not appropriate to make such a request by email and that I would hear any applications, whatever they might be, at the start of the trial Tuesday, being today.
I pause to note litigation is not conducted by email. Courts such as this Court, a superior Court of record, operate by application, affidavit and evidence in the proper form. It is rare occasions when those do not apply, [that is] evidence by way of affidavit.
At 1.34 pm on Friday, chambers received an email from the husband, again, personally with what looked like a picture of an apparent RAT test stick showing a positive. There is no way to know who that was for, or how it was done. He attached a medical certificate from a telehealth GP, saying he was unable to work due to a medical condition. That medical certificate was found at page 20 of the wife’s solicitor’s affidavit and the RAT picture at page 13 of 40.
At 4.25 on Friday in the afternoon, Mr Q filed a Request to Attend by Electronic Communication. He said he would be in his office and could attend the hearing by telephone or MS Teams. That was a request to attend the trial electronically, and it may have also included the subpoena hearing that was going to occur on Monday. Mr Q gave reasons for the request, including that he was located in Melbourne. That had not been mentioned at any stage, at least on the material that is before me, prior to that.
At 5.44[pm], the wife’s solicitor opposed the adjournment. That was found at annexure C of the wife’s solicitor’s affidavit.
On 3 September, being Saturday, at 12.17 pm, the husband emailed the Eastern Appeals Registrar with an Application in an Appeal. At 9.39 pm on a Saturday night, the Eastern Appeals Registrar emailed the husband about his email. It is worth reading parts of that which were found as the wife’s annexure D, her paragraph 5 and the actual emails at page 11. In that exchange on Saturday, albeit for different proceedings – and I note to say page 13 is where we see the picture of the COVID-19 antigen test – in that email, the husband indicated that he was unable to instruct his lawyer. He was too sick. The email to which I refer is an email, the 9.39 one, at Saturday night, 3 September from the Appeal Judicial Registrar. It is addressed “Dear [Mr Rader]” and said a range of things, including these:
Unfortunately, the medical certificate does not verify you are unable to engage in Court proceedings on 8 September 2022.
It also added:
Proceedings cannot be adjourned by correspondence.
It added as well:
Should you wish to seek to appear before the Honourable Justice Aldridge by Teams, you should file a request.
And the information is given for that:
If you no longer intend to instruct your lawyer in these proceedings, you should file and serve a notice of address for service.
Finally, Mr Rader was advised:
Should there be no appearance before his Honour –
albeit that being Aldridge J –
on your behalf at the time, your application in an appeal may be dismissed without further notice to you.
I raise that, because that and other parts of the evidence, including what Mr Q had to say this morning, make it as plain as it can be that the husband was perfectly aware of what might happen today, and how he ought bring an application to adjourn properly. That was Saturday.
On 5 September yesterday, at 10.11[am] and 10.12[am], the wife’s solicitor sent an email to the husband’s solicitor, who was still on the record at this point in time, asking him to complete a PCR test. I was told, by reference to the wife’s solicitor’s affidavit, there was no reply to that, and there has been no PCR test provided in any form. There is certainly none before the Court. The wife’s solicitors said they have not received any, and it was Mr Q’s understanding that none had been provided, despite many requests.
At 10.27[am], the husband’s solicitor advised he had no instructions. We see that at page 25 of the wife’s affidavit. An email was sent to Mr Q, denying his – this is still Monday – Mr Q, denying his late Friday request to attend by electronic communication. We are now Monday morning. That email said:
Thank you for your Request to Attend By Electronic Communication received by the Court Friday, 2 September at 4.25 pm.
And this email is at 9.03 am on the next business day, Monday, being yesterday:
We note you attended the trial directions hearing on 22 August in person in Sydney. It was made clear then that the trial would be heard in person in Sydney. You raised no difficulties with that at that time or at any other point until your request late Friday afternoon.
We also note your earlier email request on Friday, 2 September at 12.35 pm, seeking permission to cease to act. That email contained no references to logistical problems, such as being in Melbourne.
Prior to that, on 15 August 2022, you filed a request for your client to attend the trial directions to which we refer above by electronic means.
I think that probably should read “the Case Management Hearing”, but nothing turns on it:
In that earlier request, you stated that your client would be in his office in Sydney. That Request for your client to attend electronically, was granted on the basis that you would be in personal attendance in Sydney.
Your request is denied.
At 11.21 yesterday, the husband emailed chambers, asking for the subpoena hearing to be adjourned based on “my medical condition”:
If my request cannot be accommodated, then I would ask any orders are stayed to allow me to take legal advice on the next steps.
There was no application or affidavit filed or emailed to ask for that to be adjourned in the proper manner. I note the husband’s email to chambers included an email from Mr Q to him, forwarding a request for a positive PCR. At noon, the subpoena hearing was held. Leave was given to inspect documents that had been produced by the two third parties. Documents were sent to the legal representatives at 1.51 pm by the Sydney subpoena section. The husband did not appear at that hearing. Mr Q had an agent attend in person. Mr T twice asked for permission for his principal, Mr Q, to withdraw. Mr T was told that I had already directed that any such applications would be heard this morning, as in Tuesday morning.
At 12.02 pm, the husband again personally emailed chambers with an updated medical certificate, but that was exactly the same certificate dated 2 September 2022 that he had previously provided.
At 3.32 pm, the husband again emailed chambers, requesting an adjournment and attached an updated medical certificate, but nothing was actually attached to the email. Apparently this was suggested by the Appeal Registrar. He said that it was difficult to obtain the certificate as he was unable to speak. I note, though, his medical certificate comes from a telehealth appointment on 2 September. One would think telehealth requires speaking. That medical certificate was at the wife’s page 40. In addition, he emailed that the medical centre had intimated [he] will likely to be off work for a number of weeks, given his symptoms. “A hospital admission was under consideration”. I pause to note that I have no evidence of this other than the hearsay email from the husband. Despite the request last week, no evidence of a positive PCR or other evidence that might satisfy me that he is unwell has been provided.
He went on and said he “would obviously like to do everything necessary to ensure the final hearing is adjourned, given the potential miscarriage of justice”. He said he would provide brief instructions to appear tomorrow for his solicitor to withdraw from the proceedings, and, would be grateful if Mr Q could appear electronically to save on costs, and, [would] appeal if the adjournment request was rejected. He would like a stay placed on any orders. Of course, as we heard this morning, having withdrawn Mr Q’s instructions, that placed him in an invidious situation.
Last night, there were more emails. Last night, at 8.51 pm – and this is the wife’s exhibit 1 – the husband again – this is with respect to the Appeals Judicial Registrar for an appeal or perhaps an application in an appeal to be heard by another judicial officer on Thursday – confirmed Mr Q no longer represented him and cannot act on Thursday. He said he cannot attend in Court and he was too unwell to appear electronically. He said he “will provide additional medical evidence in due course if required”.
I revert back to these proceedings. There can be absolutely no doubt that the husband knew that this Court required medical evidence. The Appeals Registrar then early this morning at 7.36 am emailed Mr Rader back, saying, amongst other things:
You have been advised that adjournment applications cannot be dealt with administratively. An appearance will need to be made before his Honour on Thursday if an adjournment application is to be made.
Again, I pause to note that the husband could be under absolutely no illusions about what was required both to seek an adjournment and the consequences of what might happen today if he did not turn up.
I raised in the course of submissions from the wife’s counsel whether s 102NA had any application to the application before me, to adjourn and the resisting of that. I accept his submissions that s 102NA was not relevant to the principles with respect to adjournments. It would, however, be relevant if Mr Rader was here and unrepresented and wanted to cross-examine the wife. But he is not here. He has made it very plain he has no intention of turning up. He has chosen not to be here; thus, the whole policy of a 102NA, that one party not cross-examine the other party, and vice versa as may be relevant, is not enlivened.
I have also heard the careful evidence of Mr Q this morning. He was very clear in not giving any evidence that would be [the subject of] legal professional privilege, that would otherwise apply to his client. But what was very clear from his evidence was that at least from text exchanges between he and the father from Friday just gone through to yesterday early evening, the husband was under no illusion that:
(a)evidence is required in a Court;
(b)evidence is required for an adjournment application;
(c)he was under no illusion that an affidavit and application would be required for an adjournment. His solicitor told him so;
(d)he was told a number of times [by [Mr Q]] to file a notice of address, but none had been filed;
(e)he was aware that the trial was set down today;
(f)he had filed an affidavit of evidence-in-chief, a financial statement and a case outline which Mr Rader knew were for use in trial; and
(g)Mr Q gave evidence that whilst that material was due on 1 September, the husband took time to review it, and thus it was filed the next morning, 2 September, and with Mr Q having very clear instructions to do so.
I now refer to the medical evidence, such as it is. I have been provided a medical certificate apparently from a GP. It is clearly on telehealth letterhead dated 2 September 2022. It is from a Dr P. As I have said, it is at page 20 of the wife’s affidavit. I have also said numerous times that it does not find its way into any affidavit on behalf of the husband, who is the person moving the Court, albeit by email, to adjourn the matter. It said he is unable to attend work – and I highlight that – from 2 September to 9 September due to a medical condition. I have already referred to Mr Q’s evidence where it is plain that the husband understood what was required in terms of an application and an affidavit. I have also referred to chambers asking him for evidence of a PCR and the wife following that up.
The father said in emails, again, not evidence – nevertheless, I will engage with them – the father said by emails that he is unwell and is very sick. He said he has the medical certificate that I have referred to. I cannot put any weight, though, on the stick that is said to be a positive RAT. I have no veracity or chain of evidence that means I could rely upon that as being anything other than a picture of a stick with two positives. I have heard submissions on behalf of the mother. I go back to an earlier part of the chronology. The husband also was told that if he was able to satisfy me about medical issues and if, indeed, he had COVID, then the protocols would apply. He was sent a copy of those protocols.
I return to the medical certificate. It said the father is unable to work from 2 to 9 September 2022. There is reference to a medical condition. There is no reference to COVID. I have no idea what that medical condition is, but what the medical certificate most definitely does not tell me is why the husband may be incapable or incapacitated to attend Court personally. The certificate refers to “work”.
I am reminded by a decision, although not binding on me, nevertheless of persuasive value, from the New South Wales Court of Appeal, the case of Magjarraj & Asteron Life [2009] NSWSC 1433. In that matter, the Honourable Justice of the Supreme Court said at paragraph 20, referring to a medical certificate:
The document signed by Dr Dulic –
who was the GP there –
provides no evidence that the plaintiff is incapacitated or unfit to attend. It says that the plaintiff is receiving medical treatment for a “medical condition”. What else he might need medical treatment for is left to the reader’s imagination, as is the precise “medical condition” from which he is supposed to be suffering. People with “medical conditions” attend Court every day.
I will be producing a copy of these reasons, and will include the inverted commas consistent with his Honour’s reasons. The Honourable Justice goes on to say at paragraph 22:
All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed “medical condition”, culminating in the assertion that a person is unfit to attend Court or unfit for a Court hearing.
I pause to interpose my own observations here that the medical certificate that is before me does not even say he is unfit to attend Court or unfit to attend the Court hearing. The extract from the judge of the Supreme Court of New South Wales continues:
To the extent that such statements are put forward as evidence about the state of the person’s health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.
I adopt the observations in that decision. The medical evidence, such as it is here, does not persuade me that the husband is unfit to attend Court or ought have the matter adjourned. I am fortified in saying that by reference to the well-known and well-settled case law on adjournments.
Of course, the Court has implied power to adjourn proceedings where it is necessary to do justice between the parties. Those authorities go back a long way, including Emmett & Emmett [1982] FLC 91-212. But equally, just as I have implied power to adjourn proceedings, I have the same power not to adjourn proceedings. In that regard, I particularly refer to the High Court decision in Queensland & JH Holdings [1997] 189 CLR 146.
It is also the case the Court has a wide discretion when an application – and I use that word loosely here, but nevertheless, when one party moves the Court to adjourn the hearing. I should take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to the other party which cannot be compensated by way of costs, including, if necessary, security costs, but the fundamental consideration is to do justice between the parties.
I refer to the decision of Cheung& The Queen [1991] ALJR 1093 per Kirby J at 1094 to 1095:
The Court has both express and implied power to grant an adjournment where it is necessary to do justice between the parties. Where a refusal would seriously prejudice a party, the adjournment should ordinarily be granted. At least, it ought be granted if the opposing party can be adequately protected by orders as to costs, orders providing for a new hearing on dates suitable to it and to other orders of a procedural character which take into account any prejudice which might be suffered by it.
That said, the courts have attached increasing importance to case management issues such as the impact of the adjournment on Court resources, lists and time, the rights of other litigants to have Court time. But case management is not an end in itself. I have already referred to Queensland & JL Holdings in that regard and the quotes there at 154, 167 to 172, again, with respect to Kirby J.
I am plainly not satisfied the husband has put on any evidence that warrants an adjournment. The cases I have referred to just before highlight I must do justice to both parties. That includes the wife here, who has been in litigation since 2019. The matter has to come to an end. I am also not inclined to adjourn the matter and will not adjourn the matter by reference to the very precious Court resources. Days in Court are precious and are rare. I am not satisfied that any costs order would remedy further delay for the wife in the matter coming to a determination, whatever way that might be. I of course note rule 15.19(2), which says if a party is absent from a Court event, a Court may make an order of a variety of kinds, and ultimately – I must do – I make an order that Court thinks is just.
I propose to make the following orders for the reasons I have given. Before I do so, though, I note that part of the wife’s submissions was [about] the husband’s noncompliance with a range of orders, including, for example, my order for an undertaking as to damage. In the circumstances and the findings I have made with respect to the paucity of evidence and paucity of reasons to warrant an adjournment, I need not engage with that for this particular hearing on the adjournment.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 6 September 2022
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