Jagoda & Offerman - [2024] FedCFamC2F 886

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jagoda & Offerman [2024] FedCFamC2F 886

File number(s): MLC 2735 of 2023

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 17 June 2024

Catchwords: FAMILY LAW – property – application for adjournment – where de facto husband asserts that he is so unwell that unable to attend hearing – de facto wife on notice regarding de facto husband’s health issues for some time – de facto wife concerned at the bona fides of coincidence of de facto husband’s illness and time of trial – de facto husband seeking to rely on letter from a doctor – unreliable nature of ubiquitous “medical certificates” – whether medical evidence explains non-attendance at court and failure to file evidence in chief – de facto wife seeking order for costs – costs order would effectively be ex parte in absence of de facto husband – costs reserved.

Legislation: Family Law Act 1975 (Cth)

Cases cited: Haines & Rader (No. 2) [2022] FedCFamC1F 685

Division: Division 2 Family Law

Number of paragraphs: 36

Date of hearing: 17 June 2024

Place: Melbourne

Counsel for the Applicant: Dr Matta

Solicitor for the Applicant: Hargreaves Family Lawyers

Counsel for the Respondent: Mr Lethlean

Solicitor for the Respondent: Toner & Associates P/L
ORDERS

MLC 2735 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS JAGODA

Applicant

AND:
MR OFFERMAN

Respondent

ORDER MADE BY:

JUDGE O’SHANNESSY

DATE OF ORDER:

17 JUNE 2024

THE COURT ORDERS THAT:
1.The matter be and is adjourned to Monday 11 November 2024 for a Final Hearing not exceeding three (3) days at the Federal Circuit and Family Court of Australia at Melbourne.
2.By no later than 28 days prior to the trial date, the Respondent de facto Husband file and serve any updated material upon which he seeks to rely upon at the Final Hearing.
3.By no later than 14 days prior to the trial date, the Applicant de facto Wife file and serve any reply to the Respondent’s material upon which she seeks to rely upon at the Final Hearing.
4.The parties be at liberty to apply on short notice.
5.Both parties’ costs for this day, including for pre-trial preparation, be and are reserved.

AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jagoda & Offerman

Details

AGLC: Jagoda & Offerman [2024] FedCFamC2F 886
Case: [2024] FedCFamC2F 886
Decision Date: 17 June 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application by Ms Jagoda for an adjournment of proceedings against Mr Offerman. The application arose from a property dispute between the parties, who were in a de facto relationship. The key issue before the court was whether Mr Offerman's claim of being too unwell to attend the hearing should result in an adjournment. Ms Jagoda expressed concerns about the reliability of Mr Offerman's health claims, given his long-standing health issues and the timing of his inability to attend. The court had to assess whether Mr Offerman's reliance on a medical certificate was sufficient to warrant an adjournment and whether his failure to file evidence in chief was adequately explained by his health.

The court found that Ms Jagoda's concerns about the timing and reliability of Mr Offerman's health claims were valid. The ubiquitous nature of medical certificates meant they could not be taken at face value without corroboration. Mr Offerman's failure to provide clear medical evidence that explained both his non-attendance at court and his failure to file evidence in chief undermined his application. The court concluded that an adjournment would not be in the interests of justice without clearer evidence of Mr Offerman's health status and its impact on his ability to participate in the proceedings.

The court adjourned the matter to allow Mr Offerman to provide updated material by 28 days before the new trial date. Ms Jagoda was given 14 days to respond to any new material presented by Mr Offerman. The court reserved both parties' costs for the day and noted that if allegations of family violence were present, certain restrictions on unrepresented parties would apply. The court also highlighted the importance of the parties being aware of the Family Violence Information Sheet and the Commonwealth Family Violence and Cross-Examination of Parties Scheme.

Orders

Orders of the court

MLC 2735 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS JAGODA

Applicant

AND:

MR OFFERMAN

Respondent

ORDER MADE BY:

JUDGE O’SHANNESSY

DATE OF ORDER:

17 JUNE 2024

THE COURT ORDERS THAT:

1. The matter be and is adjourned to Monday 11 November 2024 for a Final Hearing not exceeding three (3) days at the Federal Circuit and Family Court of Australia at Melbourne.

2. By no later than 28 days prior to the trial date, the Respondent de facto Husband file and serve any updated material upon which he seeks to rely upon at the Final Hearing.

3. By no later than 14 days prior to the trial date, the Applicant de facto Wife file and serve any reply to the Respondent’s material upon which she seeks to rely upon at the Final Hearing.

4. The parties be at liberty to apply on short notice.

5. Both parties’ costs for this day, including for pre-trial preparation, be and are reserved.

AND THE COURT NOTES THAT:

A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 2735 of 2023
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	17 June 2024
Catchwords:	FAMILY LAW – property – application for adjournment – where de facto husband asserts that he is so unwell that unable to attend hearing – de facto wife on notice regarding de facto husband’s health issues for some time – de facto wife concerned at the bona fides of coincidence of de facto husband’s illness and time of trial – de facto husband seeking to rely on letter from a doctor – unreliable nature of ubiquitous “medical certificates” – whether medical evidence explains non-attendance at court and failure to file evidence in chief – de facto wife seeking order for costs – costs order would effectively be ex parte in absence of de facto husband – costs reserved.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Haines & Rader (No. 2) [2022] FedCFamC1F 685
Division:	Division 2 Family Law
Number of paragraphs:	36
Date of hearing:	17 June 2024
Place:	Melbourne
Counsel for the Applicant:	Dr Matta
Solicitor for the Applicant:	Hargreaves Family Lawyers
Counsel for the Respondent:	Mr Lethlean
Solicitor for the Respondent:	Toner & Associates P/L

MLC 2735 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS JAGODA Applicant
AND:	MR OFFERMAN Respondent

ORDER MADE BY:	JUDGE O’SHANNESSY
DATE OF ORDER:	17 JUNE 2024