Medlon & Medlon (No. 4) - [2015] FamCAFC 70

FAMILY COURT OF AUSTRALIA

MEDLON & MEDLON (NO. 4)

[2015] FamCAFC 70

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the wife makes an oral application for an adjournment of the hearing on the basis of ill-health and non-availability of her barrister – Where the husband opposes the application – Where the application has been awaiting a hearing for some time – Where the medical certificate provided by the wife in support of her application to adjourn lacks detail and provides no assistance – Where it is not apparent that the wife is unable to conduct the proceedings – Where the wife provides no evidence as to the non-availability of her barrister and provides no evidence of what attempts she has made to obtain alternative representation – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Medlon

RESPONDENT:

Mr Medlon

FILE NUMBER:

ADC

491

2010

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

27 March 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:	27 March 2015
LOWER COURT JURISDICTION:	Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 October 2012

LOWER COURT MNC:

[2012] FMCAfam 1479

REPRESENTATION

THE APPLICANT:

In person by telephone link

COUNSEL FOR THE RESPONDENT:

Ms Nelson QC

SOLICITOR FOR THE RESPONDENT:

Adelaide Family Law

Order

The oral application made by the wife to adjourn this hearing is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Medlon & Medlon (No. 4) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 88 of 2012
File Number: ADC 491 of 2010

Ms Medlon

Applicant

And

Mr Medlon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have an oral application before me by Ms Medlon (“the wife”) who is the applicant in the proceedings listed today, for an adjournment of this hearing. There is no formal written application that has been made supported by any affidavit. However, I have been prepared to accept the oral application made by the wife.
To be fair though the wife did advise the court, and I assume advised the other side, yesterday that she was intending to seek an adjournment today.
The application is opposed by Mr Medlon (“the husband”).
The two reasons proffered by the wife from the bar table in support of her application are first, that she is unwell and needs a rest, and she is off work at least until apparently 7 April 2015. The second reason the wife puts forward is that she had booked a barrister, but he became unavailable today because, the wife asserts, a part-heard matter he was involved in was carried over to today. She also tells me that she made attempts to find an alternative barrister but was unsuccessful.
In support of her application the wife has relied on a medical certificate which was forwarded to the court via email on Thursday 26 March 2015 at 7:16pm. I will receive that medical certificate and mark it Exhibit “W1”. The medical certificate is from a medical practitioner in Victoria; it certifies that the wife consulted the Doctor on 26 March 2015, and says “[s]he was affected by a medical condition and is unable to attend work today 26/3/2015 until 2/04/2015 inclusive.”
In relation to the unavailability of the wife’s barrister, there is no documentation the wife has presented to this court in support of what she has asserted from the bar table.
The application listed today, and which the wife seeks to adjourn, is an application in an appeal filed by the wife on 25 March 2013 seeking in summary that her appeal which had been deemed abandoned, be reinstated. That application had to be held in abeyance whilst other proceedings were undertaken and concluded. Those proceedings included an application by the wife that I be disqualified, which was ultimately the subject of an appeal which was dismissed. There was also an application by the wife seeking to restrain the husband’s senior counsel and the husband’s solicitor from acting for him. Those applications have now been dismissed. With all of those matters concluded I was able to relist the application on 12 February 2015.
The orders that I made on 12 February 2015 were that the application be listed for hearing commencing at 2:15 pm on 27 March 2015, with a time estimate of half a day. My memory of that listing is that there was some discussion between the wife, myself and Ms Nelson QC as to when the application could be listed, and that was a date that was suitable to not only the court, but to Ms Nelson and the wife.
The wife at that time also indicated that she intended to appear in person because she had found difficulties appearing by telephone link, which had been the common medium by which previous proceedings had been conducted. However, out of abundant caution I made an order that if the wife was unable to attend the hearing in person she have leave to attend the hearing by way of telephone link.
By way of background, because it has some passing relevance to the application today, I also made an order on 12 February 2015 that any further affidavit that the wife wished to file in support of her application be filed by 13 March 2015. I also made an order that provided for the husband to file a responding affidavit if the wife filed an affidavit in accordance with that order. As is apparent from the court file, and as has been pointed out in submissions today, the wife did seek to file an affidavit, and that is an affidavit sworn by her on 24 March 2015. It was forwarded to the court on 24 March 2015, but it has not been filed because it does not comply with the order that I have just referred to. Indeed, there is an objection to the filing of that affidavit because it is sought to be filed late, but I note that, and I assume out of abundant caution, the husband has filed a responding affidavit, and that was filed on 25 March 2015 within the timeframe I allowed in my previous order.
Thus, it can be seen that this application has been waiting for a hearing for some time. I was able though, in the circumstances I have outlined, to list it for hearing, and provide ample time for the wife to prepare for the hearing, to file any further affidavit that she wished to file, and to brief counsel. It was then only on 11 March 2015 that the wife sent an email to the court demanding that a video link be arranged for today, because she was unable to attend in person, and would be attending at the Melbourne Registry. Unfortunately, that sort of behaviour by the wife has been replete throughout these proceedings, where instead of filing an appropriate application for example, emails are sent to the Appeals Registry making demands, and indicating how things should be done in accordance with the wife’s wishes.
The advice provided to the wife in response to her demand for a video link was that she would have to file an application and a supporting affidavit. Subsequently, on 16 March 2015 the wife indicated that she intended to brief a barrister and the reason she wanted a video link was so that she and the barrister could appear in the Melbourne Registry on a link to the Adelaide Registry. As a result of that, the wife was advised by the Appeals Registry that all that was required was a request in the usual form. That request was referred to me and I granted it on the basis that the wife was about to instruct a barrister.
The court is not conducting this hearing by way of video link today, and the wife is on the telephone, and that is because she has requested that instead of attending in Melbourne at the Registry and appearing by video link, she be able to attend by telephone. The wife should know that the Registry has had to go to extraordinary expense and trouble as a result of that. Staff had been arranged to attend the Melbourne Registry to conduct the video link, and that is not now required because of her late notice. In any event, in the interests of justice and allowing this matter to proceed, I granted the wife’s request to attend by telephone today.
To return to the adjournment application, I am not satisfied that the wife is unable to conduct the hearing today. I am not satisfied with the medical certificate that the wife has presented to the court.
There are two issues about that medical certificate. First, the doctor describes the wife as suffering from a medical condition, however there is no detail whatsoever as to what that condition is. Secondly, the certificate says that the wife is unable to attend work from 26 March 2015 to 2 April 2015, but it says nothing about her ability to conduct a hearing in this court today. Thus, that medical certificate is of no assistance whatsoever to me today in understanding why the wife would seek an adjournment, allegedly because she is “unwell and needs a rest”, being the precise words she used to me in her submission.
As to the unavailability of her barrister, that is unfortunate, but the wife has conducted these proceedings herself before me from day one. Further, there is nothing before me beyond the wife’s assertions from the bar table that the barrister was unavailable today. There is no explanation of why he could not attend to make the application that is being made on behalf of the wife, and I have no evidence at all of what attempts the wife has made to obtain an alternative barrister.
To return to the issue of the wife’s submission that she is unwell and needs a rest. Ms Nelson has alerted me to emails sent by the wife to Ms Nelson’s instructing solicitor during the course of 26 March 2015, including a number of emails after 7:00pm and after 8:00pm from the wife’s work email address, as opposed to her private email address which, as I understand it, was used to send an email this morning. I also note that the medical certificate was forwarded to the court under cover of email sent at 7:15pm on 26 March 2015 from the wife’s work email address.
Further, I have had the advantage of listening to the wife so far today by way of telephone link, and she has been able to conduct her case adequately, and I also note that she has been well enough to forward reams of paper to this court over the last day or so, comprising a multitude of documents allegedly in support of her application to reinstate her appeal. All of that confirms to me that the wife is able to conduct this hearing today.
For those reasons the oral application made by the wife to adjourn this hearing is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 27 March 2015.

Associate:

Date: 4 May 2015