King & King
[2022] FedCFamC1F 837
Federal Circuit and Family Court of Australia
(DIVISION 1)
King & King [2022] FedCFamC1F 837
File number(s): MLC 9554 of 2011 Judgment of: HARTNETT J Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the Applicant sought an adjournment of the trial – Where the Applicant has failed to comply with trial directions – Where the Applicant claimed medically unfit for trial – Where no proper evidence before the Court to establish the Applicant’s claim and some contrary evidence before the Court to defeat the claim – Where leave given for further extension to Applicant to file material for trial – Where Application in a Proceeding is dismissed – Where the Applicant pay fixed costs of the Respondent – Where stay on payment of such costs. Number of paragraphs: 28 Date of hearing: 17 October 2022 Place: Melbourne The Applicant: Litigant in person Solicitor for the Respondent: Ian Robertson Legal & Conveyancing Lawyers Pty Ltd ORDERS
MLC 9554 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR M KING
Applicant
AND: MS KING
Respondent
order made by:
HARTNETT J
DATE OF ORDER:
17 October 2022
THE COURT ORDERS THAT:
1.The Applicant, notwithstanding any other orders to the contrary, is excused from filing a case outline document, and has a further extension for the filing and service of his trial affidavit and Financial Statement, together with any further affidavit/s on which he seeks to rely, to 19 October 2022 at 5.00pm.
2.In the event the Applicant fails to comply with Order 1 above, there is leave to the Respondent to seek to proceed undefended.
3.The Respondent, notwithstanding any other orders to the contrary, is granted leave to file a court book and case outline by 21 October 2022 at 1.00pm.
4.There is leave for the Respondent’s father, Mr JJ, to appear via Microsoft Teams at the trial.
5.There is leave for the Respondent to rely upon the affidavit of Ms KK filed 11 October 2022 at trial.
6.The Application in a Proceeding filed by the Applicant on 16 September 2022 is dismissed.
7.The Applicant pay the costs of the Respondent fixed in the sum of $1,500. There be a stay on the payment of such costs of three months.
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 King & King has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction
On 16 September 2022, the applicant husband (“the husband”) filed an Application in a Proceeding. The husband sought the trial date listed on 24 October 2022 as a five day matter be set aside “until [he] undergo[es] surgery”.[1] The husband claimed he had been taking pain medication for an injury that was adversely affecting his ability to function physically, and “altered [his] ability to concentrate and make sound decisions”.[2] At no stage however did he suggest that he needed a litigation guardian to act in his place.
[1] Application in a Proceeding filed 16 September 2022.
[2] Application in a Proceeding filed 16 September 2022.
Attached to the husband’s supporting affidavit of evidence filed 16 September 2022, was a medical certificate dated mid-2022 from Dr LL (“Dr LL”) which stated, relevantly, that the husband had undergone a right shoulder ultrasound, with the results indicating severe injury. The husband also attached to his affidavit of evidence a prescription made out to him for paracetamol codeine phosphate.
The husband did not serve his Application in a Proceeding or affidavit in support upon the solicitors for the respondent wife (“the wife”). Rather, they viewed such materials through the Commonwealth Courts Portal.
The wife sought dismissal of the husband’s Application in a Proceeding. She sought her costs thrown away be paid by the husband on an indemnity basis. The wife relied upon an affidavit of evidence sworn by Ms KK (“Ms KK”) filed 11 October 2022. Ms KK is a law clerk employed at the wife’s solicitor’s legal firm. The wife asserted that the husband had failed to provide any medical evidence going to his inability to prepare for a final hearing due to an injury.
At the hearing, the husband claimed he was in “a lot of pain”; presented with his arm in a sling; and submitted that he needed more time to file his trial documents.
Although the proceeding was an interim hearing, the husband was afforded an opportunity to cross-examine Ms KK as to the contents of her affidavit at the hearing. The husband did so.
At the outset I note that it was accepted by the parties that Ms KK has no medical expertise.
Evidence of Ms KK
The cross-examination of Ms KK did not challenge the evidence of Ms KK to the extent that the Court would not accept that evidence.
In late 2022, Ms KK was asked by her employer, Mr PP (“Mr PP”), to attend a business known as MM venue in Suburb NN to observe if the husband was working and/or engaging in physical activities. More specifically, to observe and pay close attention to the husband’s use of his right arm. Mr PP provided to Ms KK a photograph of the husband to identify him when she attended at the venue.
In late 2022, at approximately 8.45pm, Ms KK attended the business. Ms KK was greeted and served by the husband. It was Ms KK’s evidence that the husband appeared to be the only person who was serving customers. Ms KK observed the husband working and using his right hand; and using his right arm to hold up the EFTPOS machine whilst taking Ms KK’s payment. His arm was not in a sling.
The Court accepts the evidence of Ms KK and to the extent of its relevance, the Court is satisfied that Ms KK observed in late 2022, the husband working and engaging in physical activities at the MM venue in Suburb NN.
Consideration
The affidavit on which the husband relied, filed 16 September 2022, attached correspondence from Dr LL to “Mr Orthopaedic Surgeon” and “The OO Hospital”. The correspondence initially thanked “Mr Orthopaedic Surgeon” for seeing the husband, (inferentially in anticipation).
Thereafter, Dr LL noted that he had reprinted for the information of “Mr Orthopaedic Surgeon” the history and examination findings, together with relevant past history, allergies and current medications of the husband. The history as provided included right shoulder ultrasound, and a clinical history. The ultrasound findings indicated severe injury:[3]
[3] Husband’s affidavit filed 16 September 2022, p.4
Further attached as an annexure to the husband's affidavit was a prescription from Dr LL dated late 2022, not mid-2022, which was the date of referral by Dr LL, being a prescription in the husband's name for paracetamol codeine phosphate tablets. It is not clear why that prescription was made out in late 2022, or what its relevance was to this proceeding.
There was no persuasive and/or expert evidence before the Court as to the following critical matters:
(1)what, if any surgery the husband might undergo;
(2)when the husband might undergo any such surgery;
(3)what arrangements, if any, the husband had made to undergo surgery on a certain date;
(4)whether the husband had, in fact, obtained the prescription medication pursuant to the prescription made out to him in late 2022, and the reason for the provision of such prescription;
(5)the precise nature of the “injury” as claimed by the husband, and when sustained;
(6)the husband’s claim that his “injury” was “debilitating to function physically”;
(7)the husband’s claim that medication taken by the husband “alters [his] ability to concentrate and make sound decisions, considering its effects”; and
(8)the husband’s inability to attend a trial hearing and/or prepare for a trial hearing and the connection of any such inability to his presenting medical condition/s.
There was accordingly no evidence before the Court to support a vacation of the trial date.
Further, I note the husband was on notice from at least 2 September 2022 of what type of material would be required to be placed before the Court by him in these circumstances. The notations to the orders of 2 September 2022 included:
…
B.The Husband asserted to the Court today that he has a significant shoulder injury and will be making an Application for an adjournment of the Trial presently listed in October 2022. The Applicant has put the Respondent on notice that the Applicant will require information including, but not limited to:
(a) Evidence of the nature of the asserted injury;
(b) Evidence of how the asserted injury occurred;
(c) Evidence of what treatment may be required, including surgery;
(d)If surgery is required or recommended, when such surgery is to be performed, and by whom;
(e)If surgery is required or recommended, how such surgery will be funded;
(f)If surgery is required, what the recommended recovery period will be, including whether medication is ordinarily prescribed after such surgery.
…
The trial had been earlier listed on 28 March 2022 but was further adjourned to 24 October 2022 by orders made on 11 March 2022. Those orders also notified the husband as to the need for an unrepresented party to apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation with any such application to be made at least 12 weeks prior to the final hearing. The husband had become aware of that fact at an earlier point in time as described below.
Trial directions were made on 26 October 2021. Order 15 of those orders was as follows:
The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) shall apply forthwith and, as such, the Respondent shall not be permitted to personally cross-examine the Applicant as there is a Final Intervention Order in place for a 10 year duration.
The notation to the orders of 26 October 2021 included that:
C.Affected unrepresented parties may apply 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.
On 26 October 2021, the husband became aware:
(a)of his inability to personally cross-examine the wife; and
(b)of his need to apply to the Scheme and at least 12 weeks prior to a final hearing if he wished for the wife to be cross-examined in the proceeding.
The husband has not applied to the Scheme. He continues to be a litigant in person.
Order 10 of the orders made 26 October 2021 was as follows:
Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.
The husband failed to comply with the procedural orders of 26 October 2021, and subsequently those of 11 March 2022.
On 2 September 2022, a Judicial Registrar made further orders, relevantly including the following:
1.The time for compliance by the Husband with paragraph 4 of the Orders of 11 March 2022 is extended to 4:00pm on 16 September 2022.
2.The Husband’s Affidavit filed in accordance with paragraph 1 of these Orders must be served by email to the Applicant’s lawyer on the same day it is filed with the Court.
3. The Husband is refused leave to make an oral application for interim orders.
The wife did not seek, on 17 October 2022, to proceed undefended. With the wife’s agreement, the Court provided to the husband a further extension of time to file his material before trial.
The husband opposed the making of a costs order against him. He claims to earn no income, receive no government payments and live as supported by his partner and other family members. He conceded he works in a family business. It is however, as submitted by him, a non-profitable family business.
The making of a costs order is a discretionary determination by the presiding judge. The quantum claimed by the wife was a sum of $2,200. It was submitted by the solicitor for the wife that the costs at scale were approximately $1,900. In the exercise of my discretion and finding the husband’s Application in a Proceeding to be entirely unmeritorious, and hence wholly unsuccessful, I determined to make a costs order but in the sum of $1,500 with a stay on the payment of three months. The husband failed to provide information on which I could rely as to his financial position at the present time. That will become more apparent at trial.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 28 October 2022
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