Manesh & Manesh
[2021] FedCFamC1F 291
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Manesh & Manesh [2021] FedCFamC1F 291
File number(s): MLC 8955 of 2019 Judgment of: JOHNS J Date of judgment: 18 November 2021 Catchwords: FAMILY LAW – PROCEDURAL – application for adjournment – third day of hearing – medical certificate deems the husband unfit – conduct of the husband of concern – adjournment application granted – husband on notice to attend or risk orders being made in his absence Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 18 November 2021 Place: Melbourne The Applicant: In Person Solicitor for the Applicant: Elisa Rothschild Lawyer Counsel for the Respondent: Mr Puckey QC Solicitor for the Respondent: Freeman Family Law Counsel for the Independent Children's Lawyer: Mr Ham Solicitor for the Independent Children's Lawyer: Macgregor Solicitors ORDERS
MLC 8955 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MANESH
Applicant
AND: MS MANESH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
18 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The trial of this proceeding be adjourned on the oral application of the solicitor for the respondent husband part-heard to Monday 22 November 2021 at 10.00am.
2.By 4.00pm on 19 November 2021 the husband file and serve on each party a report from Dr F particularising:-
(a)The nature and timing of the husband's examination this day;
(b)The husband's reasons and symptoms which led him to seek medical advice;
(c)The diagnosis and treatment prescribed; and
(d)The husband's capacity to either attend court to participate remotely to give instructions to his solicitor in light of the diagnosis.
3.In the event the said doctor is unwilling or unable to prepare the report the husband's solicitor cause a subpoena to issue for the doctor to appear at 10.00am on 22 November 2021.
4.By 4.00pm on 19 November 2021 the husband file and serve upon each party a statement identifying which of the orders sought in his Outline of Case he intends to pursue and any other order not previously identified which he now seeks.
5.The costs thrown away of the wife and the Independent Children's Lawyer in relation to 18 and 19 November 2021 are reserved to 22 November 2021 IT BEING NOTED that the witness Mr E attended court this day from 9.30am until 12.30pm as arranged in open court on 17 November 2021 for the purposes of being cross-examined by the husband.
6.That the wife's solicitor cause a copy of these orders to be served by email on Dr F at his address ...
7.That the husband personally attend at the Melbourne registry of this Court for the resumption of the part-heard hearing at 10.00am on 22 November 2021.
8.Pursuant to Rule 12.28 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the Court certifies that it was reasonable to engage a lawyer (including Queen's Counsel and Senior Counsel) as counsel to attend for the applicant.
AND THE COURT NOTES that in the event the husband fails to comply with these directions or to attend personally on 22 November 2021 at 10.00am, upon application by the wife or the ICL to proceed undefended the matter may continue and be determined in his absence.
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 Manesh & Manesh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Today is the third day of the final hearing of this matter, which relates to both parenting and property applications of the applicant wife, Ms Manesh and the respondent husband, Mr Manesh. The hearing commenced before me on Tuesday, 16 November 2021.
At the commencement of the hearing, the husband, who is the respondent in the proceedings, was represented by Mr J of counsel, instructed by solicitor, Ms Elisa Rothschild. Mr J and Ms Rothschild have been engaged to represent the husband in accordance with the provisions of section 102NA of the Family Law Act 1975 (Cth) and the funding provided as a result of those orders under the Commonwealth Scheme.
On the first day, prior to the commencement of the hearing proper, Mr J sought leave to withdraw. Such leave was granted. I was informed by the husband that he sought to represent himself in the proceedings, but given the order made pursuant to s. 102NA of the Act, Ms Rothschild would conduct the cross-examination of the wife on his behalf.
Further, the husband indicated to the court that it was his intention to undertake cross-examination of all other witnesses personally. That day I cautioned the husband as to my concerns with that approach, given that he had the assistance of lawyers to conduct his case. Notwithstanding my expressed concerns the husband maintained his position and so the trial proceeded on that basis.
On the first day of the hearing, Mr Puckey, senior counsel for the wife, opened his client's case and the wife was called to give evidence. She gave some brief evidence in chief and was then cross-examined by Ms Rothschild on behalf of the husband. The trial continued on the second day, being 17 November 2021. The cross-examination of the wife concluded that day.
That day, evidence was given by the wife’s treating psychiatrist, Dr H. The husband cross-examined that witness.
In the afternoon of the second day of the hearing, a property valuer engaged by the wife to value the parties' property in Country C, Mr D, gave evidence from Country C via Microsoft Teams. The cross-examination of that witness by Mr Manesh was interrupted due to technical issues with the video link to the witness in Country C. There were also difficulties in understanding that witness's evidence as English is not his first language.
As a result of those difficulties, arrangements were made in open court for the witness to resume his evidence before the court this day with the assistance of an interpreter. It was anticipated that he would give evidence this afternoon with that interpreter to ensure that his evidence was able to be given freely and to be understood by the court.
That was a course that was agreed upon by all parties as an appropriate means of progressing the matter, particularly the property aspects of the dispute.
In addition, at the conclusion of the second day of hearing arrangements were made for another expert witness, Mr E, to attend court this morning to give evidence. Given the technical issues that arose in having video evidence from Mr D, it was agreed that, if possible, Mr E should personally attend court today to give his evidence rather than do so electronically. Accordingly, Mr E did attend court today for that purpose.
In addition to those matters, during the course of the afternoon of the second day of the hearing, the matter was stood down for a period of time as the parties were engaged in discussions in relation to the resolution of the parenting matters.
I was informed during the course of the afternoon that the parenting issues had resolved and that a minute of order had been prepared and signed by the parties. Upon returning to court in the afternoon, I was presented with a minute of consent order signed by the parties which, on its face, resolved the parenting issues. As I was about to pronounce final orders in relation to parenting matters, I was interrupted by the husband's solicitor, who informed me that her client wished to raise one additional matter in relation to the parenting matters, namely the question of provision of information to the husband by the child's school with respect to school reports. The matter was stood down to enable discussions around that issue.
When it appeared that that matter had been resolved and I had returned to court, I was then informed of a further issue. As a consequence of the matters raised by the husband through his solicitor, the matter was adjourned to enable the parties to continue their discussions with the expectation that the hearing would resume this day.
This morning, shortly prior to the commencement of the third day of the hearing, the husband caused an email to be forwarded to my Associate. That email included a medical certificate from a Dr F. That certificate provides as follows:
This is to certify that on Thursday, 18 November 2021, I examined [Mr Manesh] and in my opinion, for the period Thursday, 18 November 2021 to Friday, 19 November 2021, inclusive, he will be unfit due to a severe blinding headache.
This certificate was completed on 18 November 2021 at 9:16.29 am. A copy of that correspondence was provided to the practitioners appearing before me this morning.
Upon resumption of the hearing this morning, the solicitor for the husband made an oral application for an adjournment of the proceedings until 22 November 2021. In support of that application, she relies upon the medical certificate produced by Dr F, which is exhibit H4.
The position of the wife and the ICL is that they do not oppose an adjournment of the proceedings. However, in making that concession, they indicate to the court that they have significant concerns and reservations in relation to the husband's actions and the circumstances in which he has sought an adjournment of the proceedings.
The concerns raised by them include the paucity of information that has been provided by the husband's doctor as to his medical condition that prevents him from attending court this day. It is noteworthy that whilst he is apparently unwell and unfit to attend court, at various times throughout the course of the morning, he has been able to communicate with his solicitor and provide instructions.
Initially, it was Ms Rothschild’s position that she sought leave to withdraw as a result of her instructions that the husband wished to represent himself moving forward. That position has not been pressed before me today. The husband's solicitor has also informed the court that notwithstanding the apparent resolution of the parenting dispute, the husband now seeks to proceed in relation to all matters, including parenting issues.
There is significant uncertainty as to what the husband's position is in relation to the parenting issues. On the one hand, he has signed a consent order, seemingly with the intention of finalising all parenting issues, yet moments before orders were to be pronounced, sought to raise additional issues and now seemingly wishes to proceed in respect of all issues.
As a result of all of those concerns, orders are sought by the wife and supported by the ICL that the husband file and serve a report from his treating doctor which particularises the nature of his illness, the circumstances which brought him to be examined by Dr F this day, the symptoms he presented with, the diagnosis and treatment prescribed by Dr F and information as to the husband's capacity to participate in the proceedings.
In addition, clarity is sought by the wife as to the orders to be sought by the husband. Accordingly, orders are sought that he provide confirmation in a statement identifying the orders sought by him with reference to the orders originally sought as contained in his outline of case document filed in the proceedings.
In the event that the husband does not produce a report from Dr F particularising the information sought, leave is sought to enable the husband to cause a subpoena to give evidence to be served upon that doctor to ensure that information can be provided by the doctor to the court on Monday.
I am satisfied, having regard to the history of the matter as described, that the orders sought on behalf of the wife are appropriate.
The adjournment application is not opposed; that is what was sought by the husband. The husband's solicitor makes no submission in relation to the other matters raised by the wife.
The medical certificate produced by Dr F is brief. It provides little information to the court as to the circumstances in which the husband presented himself to that doctor this morning. In my mind, it is appropriate that further information be produced to the court as sought by the wife in relation to those matters. I am also satisfied that if the husband does not provide such a report, a subpoena should issue so that information can be given to the court by the doctor in person.
Similarly, given the manner in which the husband has conducted his case, particularly with the shifting sands of his parenting application and the uncertainty as to which aspects of his application are pressed, I am satisfied that it is appropriate that he provide a statement confirming the orders sought by him.
It is with great reluctance that the matter is adjourned; the adjournment comes at significant cost. There are the costs of the other parties thrown away, and I will make an order reserving the question of their costs to the adjourned date. There is also a cost to the community; other cases sit behind this one awaiting their turn to have their day in court. The impact of this adjournment will, of necessity, delay the commencement of other trials and the unfortunate outcome of that will be that those matters will not be relisted until next year.
The court has significant concerns as to the manner in which this adjournment application has been made and, by virtue of the husband's conduct, necessitated. The court has an absolute commitment to finalise this matter. There will be an order requiring the husband's personal attendance at court on Monday. There is no evidence before the court at this time that would preclude him from attending court.
The matter must be finalised and if the husband chooses not to attend court on Monday, he is on notice that an application may be made by the other parties to proceed on an undefended basis. If an order is made for the matter to proceed on an undefended basis, the husband is on notice that orders may be made in his absence that will finalise these proceedings. It is for these reasons that I make the orders as contained in the minute dated this day.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex parte Reasons for Judgment of the Honourable Justice Johns delivered 18 November 2021. Associate:
Dated: 17 December 2021
0
0
0