LEONE & CINO

[2015] FamCA 665

FAMILY COURT OF AUSTRALIA

LEONE & CINO [2015] FamCA 665

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – application by the husband to adjourn the final hearing – where the husband is self-represented – where the husband says that he is unable to attend court due to medical illnesses – where the final hearing can be re-listed to a date less than one month from the date of final hearing – interim orders adjourning the final hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Leone

RESPONDENT: Ms Cino

INDEPENDENT CHILDREN’S LAWYER: TJ Mulvany & Co

FILE NUMBER: MLC 3172 of 2013

DATE DELIVERED: 14 August 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 August 2015

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Glass

SOLICITOR FOR THE RESPONDENT: Lawcorp Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mulvany

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: TJ Mulvany & Co

Orders

1. That the final hearing listed to commence on 17 August 2015 be vacated.

2. That all extant applications be adjourned for final hearing before Johns J to commence at 10.00 am on 7 September 2015, noted as a 4 day matter.

3. That by 4.00 p.m. on 24 August 2015, the husband file and serve an affidavit that:-

   (a)explains the reasons for his non-appearance at the mention hearing on 13 August 2015; and

   (b)provides evidence of his attendance upon medical practitioners that day.

4. That the matter be listed for mention before Johns J at 9.30 am on 28 August 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leone & Cino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3172  of 2013

Mr Leone

Applicant

and

Ms Cino

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The parties in this case have both parenting and property proceedings on foot. The parenting proceedings concern the two children of the marriage – B, who is aged six, and C, who is aged four. The property proceedings relate to the division of the assets of the parties which comprise primarily of the former matrimonial home. There is a final hearing listed to commence on 17 August 2015 that is intended to finalise the dispute between the parties.

2. As a result of emails sent to the Court and the other parties on 11 and 12 August 2015 by the husband, who is representing himself in the proceedings, the matter was listed for an urgent mention on 13 August 2015. 

3. The matter was listed for mention to address the husband’s request for an adjournment of the final hearing as a result of various ailments that he says prevent him from attending Court and conducting his case.

CHRONOLOGY

1. It is useful to set out here the chronology of events and communications preceding the mention on 13 August 2015.

2. Proceedings in this matter were commenced by way of the husband’s Initiating Application filed on 23 April 2013.

3. The matter first came before me on 17 February 2015. On that day, I made orders that all applications be listed for hearing before me as a four-day matter commencing on 25 May 2015.

4. At a mention on 23 April 2015, I was informed by the Independent Children’s Lawyer (“the ICL”) that, due to unforeseen delays with the completion and production of the Family Report, the matter would not be ready to proceed to trial on 25 May 2015. As a result, I made orders on that day vacating the final hearing and listing all extant applications for final hearing before me to commence on 17 August 2015.

5. On 11 August 2015 at 7.13 pm, an email was sent by the husband to my associate in which the husband attached a one page letter and two medical certificates. That email was copied to the other parties. In his letter, headed “application to adjourn the hearing dated 17 August 2015”, the husband sought that the final hearing be vacated due to his health problems. He further sought that the matter be re-listed for a date not less than four weeks away to allow time for him to fully recover.

6. As stated, the husband also attached two medical certificates to the email. The first medical certificate, dated 7 August 2015, is from Dr D of E Health and states as follows:-

   THIS IS TO CERTIFY THAT

   [The husband] has been suffering from an upper respiratory tract viral infection for the last two weeks and he remains symptomatic with fevers, sweats, productive cough and lethargy. I expect these symptoms to resolve over the next 1-2 weeks.

7. The second medical certificate, written by Dr F of G Health and dated 10 August 2015, states as follows:-

   This is to certify that [the husband] has been suffering from a severe respiratory tract infection for the past 2 weeks. He continues to have symptoms – including fever, sweats, tiredness and cough. He is taking antibiotics and I feel his symptoms will resolve in 2 to 3 weeks.

8. My associate responded to the email of the husband on 12 August 2015 at 10.39 am, informing the husband that in the event that the other parties did not consent to an adjournment of the hearing, the matter would need to be listed for a mention before me on the following day.

9. At 2.22 pm on 12 August 2015, the husband again emailed my associate and the other parties, setting out his reasons for seeking an adjournment and reiterating that his health concerns will prevent him from attending Court. The husband further set out numerous complaints that are not relevant to the issue of the adjournment. I do not intend to set out the entirety of that email due to its length. However, insofar as the husband’s email is relevant to the issue of the adjournment, he says as follows:

   I cannot attend court due to the seriousness of my health condition please read the two independent doctors [sic] report it clearly states my condition specifically it says I have a fever and other condition:  

   …

   As a litigant in person I say that if this court does not adjourn the hearing on its own motion because I am under my doctors care of my medical conditions then I say as I am a “HUMAN-BEING” the court must adjourn the hearing and relisted for not less than 4 weeks so I can recover my health: ALSO I RELY ON NATURAL JUSTICE:

   Further because of my medical conditions I haven’t been able to respond to all of the last court orders for me to file all my documents as per the orders of May 2015 so I request that this court also grant me leave to extent [sic] the orders so I can file my further documents for which I need to file in responds [sic] to the other parties:

   …

   Please adjourn the hearing for 4 weeks or over until such time my heath [sic] gets better and my doctors give me the clearance of my health conditions:

   …

10. My associate replied to that email at 3.19 pm on 12 August 2015 as follows:-

    …

    A matter set down for trial can only be adjourned administratively with the consent of all parties.

    Further, due to congestion in her Honour’s docket an adjournment of this matter cannot be accommodated within the timeframe you seek and the re-listing (if granted) is likely to be delayed for several months. Consequently, a request for an adjournment that is not consented to by all parties, can be considered only following discussion between all parties, in open court.

    The matter will be listed for mention tomorrow, Thursday 13 August 2015, at 10.00am. If you are unable to attend in person the Court can hear you by telephone…

11. A further two emails were received by the husband, the first at 10.33 pm on 12 August 2015 and the second at 2.44 am on 13 August 2015. Those emails repeat matters addressed in the earlier emails and both attach a letter from Dr H, Clinical Psychologist. That letter states as follows:-

    This is to certify that I have seen [the husband] in a professional capacity for 9 sessions between the 24^th December, 2014 and the 12^th August, 2015.

    [The husband] presented with symptoms of low mood, stress and anxiety as a result of ongoing legal litigation with his ex-wife in relation to access to his children.

    At our most recent session, [the husband] presented with symptoms of stress and anxiety regarding a forthcoming court appearance. He reported that he had recently experienced a viral respiratory infection, his current mental state is likely to cause some impairment in cognitive functioning such as poor memory and concentration, drowsiness, and inability to focus on tasks. It is further likely that he would [be] incapable of attending to legal matters at this time due to poor physical and mental health.

The Hearing

1. The husband did not appear at the mention on 13 August 2015.  The wife was represented by counsel and the ICL was also present.

2. Having delayed the commencement of the mention for two hours to allow the ICL time to attempt to contact the husband, I was informed by the ICL that he had been unable to directly contact the husband. Instead, each time the ICL rang the husband’s mobile telephone number, the call was answered by a person who identified himself as ‘Mr I’, a friend of the husband’s.  The ICL was informed that Mr I had taken the husband to the emergency department at the Monash Medical Centre at 6.00 am that same morning. The ICL was also informed that the husband had had an electrocardiogram, that he was presently undergoing a blood test and that he was not within range of a telephone.

3. At that point, I informed the ICL and counsel for the wife that there was a possibility that the final hearing could be re-listed to commence 7 September 2015, subject to the parties in another matter, listed for final hearing commencing on 7 September 2015, reaching a settlement. I informed the parties that if that date was not available, the matter could not be relisted until February 2016.  Otherwise, I raised with the ICL and counsel for the wife the possibility of commencing the trial on 18, instead of 17 August 2015, in order to allow the husband an extra day to prepare.

4. I then stood the matter down to allow the ICL to again attempt to contact the husband in order to convey this information to him.

5. Upon resumption of the mention, I was informed by the ICL that he had spoken with the husband’s friend and that that friend would pass on the information to the husband.

6. The ICL had also helpfully made inquiries of Dr J, who has prepared a Family Report in this matter and who confirmed that she would be available to give evidence in the week of 7 September 2015 should the matter be re-listed to commence in that week.

7. In relation to the husband’s application for an adjournment, the ICL submitted that the medical certificates provided by the husband and the information provided as to the husband presently being in the casualty ward would have to be accepted at face value. He further submitted that he could not oppose the husband’s application for an adjournment although noted that this is the second occasion on which the trial might have to be vacated. Solely in relation to the parenting aspect of the case, the ICL submitted that any prejudice in delaying the final hearing would fall to the husband who is seeking orders that the children spend unsupervised time with him. The husband presently spends six hours of supervised time with the children each alternate weekend. 

8. Counsel for the wife also made submissions with respect to the adjournment sought by the husband. It is the wife’s position that if the final hearing cannot be re-listed to 7 September 2015, then she would not oppose the commencement of the final hearing being postponed by one day to 18 August 2015. The wife otherwise opposes the adjournment sought by the husband.

9. In support of the wife’s opposition to any adjournment beyond the week of  7 September 2015, counsel submitted that neither of the medical certificates from Dr D nor Dr F were clear as to the husband’s incapacity (or otherwise) to participate in the proceedings. Moreover, with respect to the medical certificate of Dr D, counsel for the wife noted that the estimated recovery time for the husband is one to two weeks. Given that that medical certificate is dated 7 August 2015, it was submitted on behalf of the wife that the maximum projected recovery time for the husband of two weeks falls within the week of the trial as it is presently listed. While the second medical certificate of Dr F estimates a longer recovery time for up to three weeks, counsel for the wife submitted that it nevertheless fails to address the capacity of the husband to participate in proceedings.

10. While conceding that the letter of Dr H does address the husband’s capacity to engage in legal proceedings, counsel for the wife submitted that the husband’s symptoms of “low mood, stress and anxiety” as described by Dr H are what would be a very common experience of litigants in this court. Counsel for the wife noted that the wife herself has been experiencing similar symptoms to the husband leading up to the anticipated trial date of 17 August 2015.

11. Counsel for the wife also relied upon Division 12A of the Family Law Act 1975 (Cth) (“the Act”), which sets out the principles for conducting child-related proceedings, and specifically the need for proceedings to remain child-focused. As noted earlier, the dispute between the husband and the wife involves the parenting arrangements for their two children. It was submitted by counsel for the wife that lengthy delay in resolving the parenting issues between these parties will exacerbate issues already facing these parties and their children, which will likely impact negatively upon the children.

12. I reserved my decision pending the outcome of settlement discussions between the parties in the matter then listed to commence on 7 September 2015. Fortuitously for the parties in these proceedings that matter has resolved.  As a result I am able to list the hearing of this matter to commence on 7 September 2015.

13. Whilst the husband sought an adjournment of four weeks, I already have matters listed for hearing later in September and indeed for the balance of this year.  Had the matter listed on 7 September 2015 not settled, I would have had no capacity to adjourn the matter other than to 2016. 

14. These proceedings have been on foot since 2013.  The parties’ children have been the subject of litigation since they were aged approximately two and four years respectively.  Having regard to that history, I am satisfied that the proceedings must be finalised without further delay.

15. The failure of the husband to communicate with the Court by telephone in relation to his adjournment application is most unsatisfactory.  Nonetheless, in circumstances where two medical practitioners have provided certificates confirming the husband’s current illness and I am able to re-list the matter within a matter of weeks, I am satisfied that it is appropriate to adjourn the hearing to that date.

16. However, in my view the husband should provide to the court evidence as to the reasons for his non-appearance at court this day, particularly given that he had been informed that he could appear by telephone.  I will make orders requiring him to swear an affidavit setting out the reasons for his non-appearance at Court.

17. Accordingly, the orders I make are as follows:

    1.That the final hearing listed to commence on 17 August 2015 be vacated.

    2.That all extant applications be adjourned for final hearing before Johns J to commence at 10.00 am on 7 September 2015, noted as a 4 day matter.

    3.That by 4.00 p.m. on 24 August 2015, the husband file and serve an affidavit that:-

    (a)explains the reasons for his non-appearance at the mention hearing on 13 August 2015; and

    (b)provides evidence of his attendance upon medical practitioners that day.

    4.That the matter be listed for mention before Johns J at 9.30 am on 28 August 2015.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 14 August 2015.

Associate: 

Date:  14 August 2015