Jagoda & Offerman
[2024] FedCFamC2F 886
•17 June 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
These are the settled reasons of a judgment delivered ex tempore, that is delivered orally immediately after the hearing. These reasons have been corrected from the transcript to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
These are my reasons in the matter of Jagoda & Offerman. The matter was listed this morning for a two-day final hearing.
BACKGROUND
For convenience, in these reasons I refer to the parties as ‘the Husband’ and ‘the Wife’.
The parties commenced living together in a de facto relationship under the definition of the Family Law Act 1975 (Cth) in 2007, and they separated in 2021. There are two children of the relationship, their oldest is almost 19, and their youngest is now 16. The parties are farmers as well as working in off-farm occupations. It is said that the best piece of equipment you can have on a farm is an off-farm occupation.
The applicant (de facto) Wife asserts that the respondent (de facto) Husband has unreasonably caused her significant difficulty by the manner in which he has either conducted, or simply not conducted, proceedings and by the manner in which he has either responded or not responded to various events.
The matter had been fixed for final hearing, but that was, by agreement, deferred so that the parties could attend a roundtable conference. Then the (de facto) Husband simply said he would not attend the roundtable conference and he didn’t. Hence, from the de facto Wife’s point of view, that was a waste of time, money and the opportunity for a trial.
The applicant (de facto) Wife was to file material, according to the court orders, for the trial this morning, on 27 May 2024. She filed two days late and filed on 29 May 2024. Nothing turns on those two days. The (de facto) Husband was due to file his trial material on 3 June 2024, but had been told that he could take a couple of days longer (without objection from the other side) because they were late – and hence he was expected to file by 5 June 2024.
Husband’s health
Back on 17 April 2023, in interlocutory proceedings, the Husband had set out his account of his health within his affidavit filed that day.
54.My health has unfortunately deteriorated over the past couple of years. I was suffering from a sever [medical condition] and most days leading up to my surgery in [early] 2023, I would be hunched over walking but nonetheless, continues to work.
55. I was also diagnosed with [a medical condition] in my mid 40's after suffering years of debilitating pain. I have now had this for some 17 years. I am reliant on significant medication which come at a considerable cost each month to manage my [medical condition]. I have also developed [a medical condition] during this period for which I take medication.
56. In 2014, I had surgery after [an injury] in which I thought was a minor farm accident. In 2017, I had [surgery] after suffering ongoing [illness]. Just prior to separation, I underwent [surgery] after an extended period of incapacity exacerbated by COVID surgery delays.
57. I am presently prescribed [several medications]. My doctors is [C Medical Clinic] and I also have a range of specialists.
58. As deposed to herein, in [early] 2023, I underwent major surgery which was a [procedure] from which I am still recovering at the time of deposing this affidavit. In the process of this surgery, I suffered minor damage to the [body] which resulted in significant [injury] which consequently meant a longer hospital stay. I then developed [a medical condition] which has only slowly regressed since returning home from hospital, but partially remains.
59. I have been informed by my specialist and my GP that I may have suffered a [medical episode] during my surgery. I am continuing to undergo testing in respect to this.
…
61. Being heavily immune suppressed, I become unwell and suffer various infections occasionally, which have, on occasion, hospitalised me as a result. These conditions have had, and continue to have, a major impact on my life and mean I am a lot slower now than I used to be.
…
Hence, the Court and the Wife have been on notice that the Husband either suffers, or asserts he suffers, some very significant health issues. On 6 June 2024, that is, the day after he was expected to file his trial material, the Husband attended his usual medical clinic, and as a result of that attendance, he was transported via ambulance to City D Hospital.
He remained in hospital on Thursday, 6 June 2024 and Friday, 7 June 2024 and was released on Saturday, 8 June 2024. That information can be reliably ascertained from the letter of Dr B dated 13 June 2024, as well as the medical record that purports to be a “medical certificate” of the City D Hospital.
City D Hospital record simply states that he was seen at the City D Hospital on 7 June 2024 for a medical condition, and it goes on to opine that:
a)he/she is unfit for work from 8 June 2024 – to 9 June 2024 inclusive.
On Thursday 13 June the solicitors for the Husband provided to the Wife’s solicitors the letter from Dr B which included the following paragraphs.
This letter is to confirm that the above named, [Mr Offerman], is a long-standing patient of this practice and has multiple chronic health conditions which impact his ability to work fulltime into the future as his diseases progress.
I can also confirm that last week, on Thursday 6th June, [Mr Offerman] presented to the clinic with concerning and life threatening symptoms on that day and in the preceding two-week period, such that it required emergency transport via ambulance to [City D Hospital], where he remained an inpatient under [Dr E]’s care.
He has since been discharged with a management plan that alongside medical optimisation. suggests a period of total rest and [recuperation] over the coming weeks and to avoid an: further stressful events. As such, I ask that you consider these factors in both his non-lodgement of required paperwork and also for a delay in the court case scheduled for next week by a few weeks to allow an improvement in his health.
(emphasis added)
The Wife is concerned at the bona fides of the Husband. That is, at the coincidence of his illness with the time to file material.[1] Her counsel, Dr Matta, submits that the medical material provided is inadequate and should have been accompanied by written formal application and affidavit, and he was also critical of the manner in which the medical material and information has been either put before the Court or provided to the Wife. The Husband’s counsel presses that the rules that require the formality of that evidence be dispensed with in the urgency of this situation. It is noted that there has been one working day since the 13 June 2024 report.
[1] And in the context of his alleged recalcitrance in the proceedings.
The submission from counsel for the Wife is that the assertion of the solicitor’s letter of 14 June 2024 contained some “extraordinary” propositions. That letter opined as follows:
We advise that our client has been experiencing ill health such that on 6 June 2024 he required urgent medical attention.
As our client had been unwell for some weeks leading up to the medical intervention of 6 June 2024, our capacity to comply with Orders for the filing and serving of Trial material has been compromised such that the documents remain incomplete and unsworn.
Please find enclosed a report from our client’s medical practitioner confirming our client’s medical presentation on 6 June 2024 and medical advice that he have total rest and not engage in stressful events.
On the basis of the medical advice provided to our client and documented in the attached report, we wish to inform the Court that on Monday 17 June 2024 it is our intention to seek an adjournment of the Trial proceedings.
It is said that is extraordinary because this is the first time that there was any advice that he had been unwell for some weeks leading up to the medical intervention on 6 June 2024. Further, it was put that response to the compliance-check letter from the Court, which went out on 5 June 2024, did not raise or address these matters.
It has been raised that a possible answer to some of the matters that the Wife’s lawyers see as discourteous in regard to the lack of replies or the timing of them may or might be related to the circumstances that the Husband’s solicitor (so it was asserted from the bar table) suffered a serious injury early this year, and her practice has been conducted by a locum. I am unable to find on this interim hearing that the assertion of the injury explains or excuses the alleged discourtesy.
The issue of problems with the Husband’s health have been alive since at least 17 April 2023. The Wife is concerned at the bona fides of the Husband’s presentation to doctors and his accounts to them.
At this point, I am unable to find that, the Husband’s behaviour complained of is solely motivated by an intention to delay or frustrate the trial or to cause the Wife unnecessary costs. One or more of the incidents complained about may have been. But I am unable to find that they all were. It doesn’t necessarily follow that his presentation to the doctor on 6 June 2024 was lacking bona fides.
The Wife’s counsel has been restrained in the manner that was described. However, to be blunt, if the Husband lacks bona fides in regard to his presentation on 6 June 2024 and thereafter, including his re-admission to hospital on 11 June 2024, and if he attended only for the purpose of defeating or preventing this trial proceeding, that may well be a stunt or a scam, but I am unable to find that on this adjournment hearing.
Inadequacy of ubiquitous “medical certificates”
In all of the circumstances I am satisfied that it is necessary to adjourn the matter to do justice between the parties.
I was helpfully referred to some authorities by the Wife’s counsel and, in particular, to the decision of Haines & Rader (No. 2) [2022] FedCFamC1F 685, where I was taken to the observations in regard to a medical certificate. In that case the Husband had emailed to the Court a medical certificate in the ubiquitous form of many medical certificates that simply states that someone is unfit for work. Unsurprisingly, the trial Judge was irritated by such a vague proposition or at least, if she wasn’t irritated, she placed little weight on the assertion.
In the course of argument or discussion with counsel I raised the observation that whoever drafted that form of medical certificate, of which hundreds and thousands are provided to patients, had never set foot in a court and had no understanding of what was necessary to satisfactorily provide evidence of ill health and ill health for the purpose of explaining the non-attendance at court.
However, in this case I consider it to be self-evident that the assertions in Dr B’s letter, and in particular the paragraph below, are significantly more detailed and far different from the mere “medical certificate” that simply says someone is unfit for work. I repeat the statement:
I can also confirm that last week, on Thursday 6th June, [Mr Offerman] presented to the clinic with concerning and life threatening symptoms on that day and in the preceding two-week period, such that it required emergency transport via ambulance to [City D Hospital], where he remained an inpatient under [Dr E]’s care.
Conclusion
Further, the context of the attendance on 6 June 2024 is, or may be, the significant ill health and medical conditions earlier described by the Husband as set out above. In all of those circumstances I am satisfied that the interests of justice, to both parties, require the adjournment of the matter.
Further orders
The matter will be listed on Monday 11 November 2024 for a hearing not exceeding three days. I will order the respondent (de facto) Husband file his trial material 28 days prior to the trial listing and I hope the parties will be able to conclude the matter within two days, given the substantial expense.
Any reply by the applicant (de facto) Wife to the respondent (de facto) Husband’s material should be filed 14 days prior to the hearing. I will provide liberty to apply in the event of anyone’s health being such as it would interfere with the orderly progression of the trial.
Costs Sought
The Wife’s counsel pressed that I order costs – and substantial costs – including indemnity costs in regard to counsel’s fees. Counsel’s fees were said to be two days of preparation for this final hearing and two days, being today and tomorrow, in the circumstances where counsel did not have a brief for tomorrow.
Those fees, at $6600 per day, were said to total $19,800.[2] The burden of those costs, as well as the solicitor’s costs, in properly preparing for this trial is said to be, and I accept, a substantial prejudice to the Wife.
[2] Only three of those four days of costs were claimed against the Husband.
One of the complaints that the Wife has is the Husband not providing offers of compromise or not responding to offers of compromise. Whether that is reasonable or not will be determined by the disparity, if any, between the outcome of the final trial and the content of those offers. It is clear enough that the Wife regards the Husband’s non-acceptance of those offers as unreasonable and his non-response to those offers as unreasonable. I am satisfied she would find that profoundly irritating and troubling.
However, at this point in time, I cannot guess at what might be in the offer, and I cannot guess at what the final result would be. To the extent that those offers have a significant impact on costs, that is a matter that can be determined at the end of the trial.
Payment sought from funds held on trust
The further alternative put by counsel for the Wife was that the sum of $17,000 that is currently in a trust account by way of a court order that arose from the sale of livestock, but from the property and the farm as conducted by the (de facto) Wife (as opposed to the property or farm conducted by the (de facto) Husband) should be paid to her.
In that sense, I recognise the moral claim that the Wife has to those funds. It was pressed that the whole of those funds should be ordered to be paid to the Wife with the characterisation being reserved to the trial judge.
It is clear enough that the asset pool between the parties is something in the order of $4 million, substantially arising from two separate properties. Property occupied by the Wife arises from a substantial inheritance to her and the property occupied by the Husband arises from the fact that he owned that property prior to the parties’ relationship, although the extent of the mortgage does not appear to be known.
I also discussed with counsel whether half of those funds should be released. Essentially, in the circumstances, I am proceeding ex parte in the sense that, on the Husband’s case, his counsel can’t get appropriate instructions to deal with the application.
Balancing all of the matters, including the potential for how serious the Husband’s ill health actually is, I am not satisfied that I should make any order in regard to those funds, but there will be liberty to apply. I note that it appears that the only readily available asset that the parties have is not cash, but is livestock, many of which would ordinarily be sold. The valuation puts them in store condition as opposed to the condition that, I infer, they would ordinarily be sold in.
Ex parte orders may cause injustice
I intend to provide for liberty to apply in the event that either party is financially restricted from being able to continue with the hearing. I am tempted to simply make the order that the $17,000, or half of it, goes to the Wife to be determined later on. Except: I do not know what the other side of the story is. And I am cautious about making what would be, effectively, ex parte orders. My caution arises from some decades of this sort of work and the not infrequent injustice that ex parte orders can throw up when a judge does something relying on only one side of the story.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O’Shannessy. Associate:
Dated: 17 June 2024
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