Holbert & Holbert
[2024] FedCFamC1A 107
•8 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Holbert & Holbert [2024] FedCFamC1A 107
Appeal from: Holbert & Holbert [2024] FedCFamC1F 85 Appeal number: NAA 77 of 2024 File number: MLC 2024 of 2018 Judgment of: AUSTIN J Date of judgment: 8 July 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adjournment – Where the appellant sought an adjournment of the final appeal hearing for no less than three months – Where the application was supported by the respondent – Where the supposed premise of the application was the appellant’s ongoing recovery from recent surgery – Where limited weight can be reposed in the opinion of the appellant’s specialist with respect to the appellant’s psychological health – Where the Court is mandated to conduct litigation quickly, inexpensively and efficiently – Appeal final hearing vacated and relisted one month later – Hearing to be conducted electronically – Application otherwise dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.07
Number of paragraphs: 27 Date of hearing: 8 July 2024 Place: Newcastle (via Microsoft Teams) The Appellant: Litigant in person Solicitor for the Respondent: Mills Oakley ORDERS
NAA 77 of 2024
MLC 2024 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HOLBERT
Appellant
AND: MS HOLBERT
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
8 JULY 2024
THE COURT ORDERS THAT:
1.The hearing of the appeal and cross appeal on 1 August 2024 is vacated.
2.The appeal and cross appeal are re-listed for hearing on Friday 30 August 2024 by way of Microsoft Teams connection.
3.The time for compliance with Orders 5 and 6 made on 20 June 2024 is extended to 26 July 2024.
4.The time for compliance with Orders 7 and 8 made on 20 June 2024 is extended to 16 August 2024.
5.Otherwise:
(a)the Application in an Appeal filed on 28 June 2024 is dismissed; and
(b)the parties’ joint application for orders in accordance with those recorded in the Minute of Proposed Consent Orders dated 4 July 2024 is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Holbert & Holbert has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
The appellant applied to adjourn the hearing of the appeal and cross appeal fixed for 1 August 2024, which application enjoyed the support of the respondent.
These reasons explain why the application is granted, but not in the terms agreed between the parties.
Background
The appealed orders were made by the primary judge on 21 February 2024. No appeal from the orders was filed within time.
On 3 April 2024, the appellant applied for an extension of time within which to appeal. The respondent opposed the application and even wanted the appellant declared vexatious. Nonetheless, the appeal registrar granted the application on 6 May 2024 by allowing the appellant a few more days within which to appeal.
The appellant filed his Notice of Appeal within time on 8 May 2024 and the appeal was fixed for directions hearing before the appeal registrar on 30 May 2024.
The appellant underwent unexpected surgery in late-May 2024, by reason of which the directions hearing was pushed back from 29 May 2024 to 12 June 2024.
The respondent then validly filed a Notice of Cross Appeal on 30 May 2024, because the appellant did not serve the Notice of Appeal upon the respondent until 14 days beforehand on 16 May 2024 (r 13.07(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
On 12 June 2024, the directions hearing was again pushed back to 20 June 2024.
The appellant appeared electronically at the directions hearing on 20 June 2024, at which time the hearing of the appeal and cross appeal was fixed for 1 August 2024 and ancillary procedural orders were made to ensure the parties’ readiness for hearing.
At the time those orders were made, the registrar made this notation:
A.Subject to the appellant providing to the respondent’s lawyer adequate medical evidence of the appellant’s asserted, ongoing ill-health, the parties foreshadow making a joint application to adjourn the hearing of the appeal and cross-appeal on 1 August 2024.
The appellant deposed that he thereafter communicated with the respondent’s lawyers, sending them the “medical information” he had available, but he did not receive any affirmative response about their consent to an adjournment application.
As a consequence, the appellant filed an Application in an Appeal on 28 June 2024, supported by his affidavit filed contemporaneously, seeking an adjournment of the hearing of no less than three months duration.
On 4 July 2024, the appeal registrar received a letter from the respondent’s lawyers attaching a minute of proposed consent orders executed by the parties. The orders, if made in the terms proposed, would vacate the hearing of the appeal and cross appeal, but without fixing a fresh hearing date, and require that no fresh hearing date would be fixed by the Court until either the parties jointly notified the Court they were ready to proceed or one party brought an application seeking a fresh hearing date.
On the strength of the evidence adduced, the Court was not prepared to abandon the control of its process to the parties in that carefree way and so the adjournment application was listed for hearing on 8 July 2024.
The proposed adjournment
In support of his adjournment application, the appellant relied upon his affidavit filed on 28 June 2024 (including annexures).
The respondent did not adduce any evidence in respect of the application.
On the face of the material filed, the premise of the appellant’s adjournment application was his ongoing recovery from surgery in late May 2024.
The appellant alleged this in his Application:
3.I have been advised by both my [specialist] and GP that I require more time to recover following the surgery and not to expose myself to any further stress, anxiety or International travel.
4.I have been advised that a 3 month time frame should allow me to recovery sufficiently.
(As per the original)
There is no evidence from the appellant’s specialist or general practitioner to verify those conversations.
The appellant then deposed this in his affidavit:
9.I have recently seen my [specialist] in [location] who has highlighted that I would not be well enough psychologically for the hearing in August. I have since seen my GP [i]n [late] June about this who has confirmed the same. Annexed hereto and marked “C” is correspondence confirming this.
…
11.A procedural hearing took place on 20th June with [the appeal registrar] where I advised that it was unlikely I would be medically fit to attend the hearing in Melbourne on the 1st August 2024. [The appeal registrar] advised that the court had been given information about my health and were likely to receive a mutually agreed request for adjournment from both parties.
(As per the original)
Evidently, the medical advice received by the appellant about his fitness for the upcoming appeal hearing is not directly related to his condition. Rather, his trepidation about appearing at the appeal hearing on 1 August 2024 is related to his “psychological” condition and his wariness about attending the hearing in person, which would entail another flight from Europe. He seemed to agree that was so in oral submissions.
The medical evidence shows the appellant had surgery in Country QQ in late-May 2024 and was discharged the next day. He had a medical procedure successfully performed for a medical condition, which condition has now abated. He flew back to Europe from Country QQ in early-June 2024.
The appellant’s specialist reported to his general practitioner on 14 June 2024 as follows:
He has had no further [medical condition] pain since then but has been feeling quite a high level of stress and anxiety for this and other personal and professional matters.
…
I think that following [medical procedure] he is now free of [medical condition]…
From a [medical condition] perspective we discussed about him increasing his exercise in a step-wise fashion over the coming weeks and months and ultimately I put no limit on his physical abilities.
…it can take weeks or months to fully recover…Specifically he mentioned that he is due to appear in Court in Australia in relation to divorce proceedings in little over a months time and I think it is quite likely that from a recovery and stress point of view this would be a difficult time scale for him to be ready for…I would not expect him to be well enough psychologically for this by early August.
(Annexure C to the appellant’s affidavit filed 28 June 2024)
It would seem the appellant’s medical condition does not prevent him from being ready to conduct the hearing well before November 2024, which is the time frame of his adjournment application. Limited weight can be reposed in the specialist’s opinions about the appellant being well enough “psychologically” to participate in the upcoming appeal hearing, particularly if the appellant is given leave to appear electronically from the comfort of his home in Europe. Psychology is not the specialist’s discipline of expertise. Most self-represented litigants feel some degree of stress and anxiety about conducting legal proceedings without the aid of legal representation. That of itself is no reason to delay litigation, which the Court is mandated to conduct quickly, inexpensively and efficiently (s 67(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
The appellant was well enough to appear electronically at the directions hearing before the appeal registrar on 20 June 2024 and well enough to again appear electronically at this hearing on 8 July 2024. There is no reason to suspect he will not be fit enough to appear electronically at a hearing of the appeal and cross appeal if given a reprieve of an extra month.
The appeal is quite narrow. The appellant argues a solitary ground of appeal concerning the primary judge’s alleged failure to take a mortgage into account. The cross appeal is also relatively narrow, comprising three grounds asserting alleged discretionary and factual errors. The conduct of the hearing of the appeal and cross appeal is unlikely to be very taxing upon the appellant.
The hearing fixed for 1 August 2024 is vacated, but re-listed a month later on 30 August 2024. The evidence does not justify an adjournment until at least November 2024. To reduce any psychological, physical or financial burden upon the appellant, the hearing will be conducted electronically by Microsoft Teams. In that way, the appellant will be able to participate in the hearing from his home in Europe. The former procedural orders are adjusted accordingly.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 9 July 2024
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