Nest and Nest (No 2)

[2014] FamCA 269

FAMILY COURT OF AUSTRALIA

NEST & NEST (NO. 2) [2014] FamCA 269

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – husband appeared unrepresented - husband sought adjournment part way through trial on medical grounds – Husband to demonstrate how his medical complaints would prevent him from participating in proceedings.

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Husband made oral application for a stay of proceedings – application was already heard and determined in previous application – application dismissed.

APPLICANT: Mr Nest

RESPONDENT: Ms Nest

FILE NUMBER: ADC 1821 of 2008

DATE DELIVERED: 26 February 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 26 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Morosini

SOLICITOR FOR THE RESPONDENT: Di Morosini and Co

Orders

1. The Application in a Case filed 25 February 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nest & Nest 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 ADELAIDE

FILE NUMBER: ADC 1821 of 2008

Mr Nest

Applicant

And

Ms Nest

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter of Nest comes before me today as a part heard hearing in respect of an order that I made on 21 February 2014 adjourning the matter as a primary listing for today for three days.  In addition to that order, I made two further orders.  The first was that the husband attend personally or, by legal representative, properly instructed.  The second order was that if there was to be an application for an adjournment based on the medical health, the psychological health or other circumstances in respect of the husband, then such medical practitioner, psychologist or practitioner should attend before the court to give evidence on oath and that they be available for cross-examination on 26 February 2014 at 10 am. 

2. I do not propose to go back into the history of the matter because each of the respective applications has been the subject of detailed reasons.  In particular, reasons were given on 28 January 2014 and 31 January 2014.  My reasons of 28 January 2014 sets the scene and provides the starting point in respect of the medical issues that the husband relies upon both in respect of the application for an adjournment on that occasion but also as the foundation for the current application.

3. The second matter raised by the husband relates to the status of an Application in a Case dated 27 January 2014. The husband asserts that the Application in a Case sought a number of orders but, in particular, that the trial listed to commence on 28 January 2014 be adjourned. 

4. That application was the subject of comment and remark by me in my reasons of 28 January 2014.  Those reasons were provided in support of the rejection of the husband’s applications for the adjournment of the trial at first instance.  The issue in respect of the application that appears to concern the husband is that the Application in a Case does not appear on the court record.  As far as that is concerned, whilst it was the subject of consideration by me on the day, that application does not appear. 

5. There is a reason for that. When this matter was listed before me on 28 January 2014, the husband provided, initially, a response document which contained certain orders.  He then withdrew that response document and tendered an Application in a Case which contained the same orders.  Those matters are the subject of consideration and comment in paragraphs 3, 4, 5, 6 and 7 of my reasons of 28 January 2014. 

6. The difficulty is that the Application in a Case demonstrably was not filed through the portal and was clearly not filed through the registry.  It was tendered in court by the husband on the day and the issue that arose was how the document (the Application in the Case of 27 January 2014) came to bear a court seal in circumstances where it could not have gained that imprint other than via a filing through the portal or the registry. 

7. I asked the husband on a number of occasions, both on that day but also on 21 February and then again this morning, whether he was able to proffer any explanation as to how a document tendered to me in open court could have a court seal in circumstances where it was not filed formally.

8. The husband was not able to provide any explanation and, in all the circumstances, whilst obviously there remains a mystery in respect of how a court seal could have been affixed to a document handed up in open court, nonetheless, it would not appear to me that the matter is likely to be able to be taken any further.  There is no better explanation forthcoming from the husband and so, to the extent that the Application in a Case dated 27 January 2014 and the subject of reference and referral by me in my reasons of 28 January 2014, that Application in a Case will now be placed on the court file. 

9. The matter is part heard and is listed this morning to continue the hearing noting that the husband is partway through his cross-examination of the wife.  An Application in a Case has been filed on 25 February 2014. It is supported by an affidavit bearing the same date.  The affidavit, unfortunately, does not provide any further assistance in terms of the order sought by the husband, it being a document that, frankly, is a repeat in substance and form of previous allegations of bias apprehended or otherwise asserting that my attendance to the matter is unbalanced, not neutral and, in some way, designed to assist the wife’s case rather than to allow the matters to be put fairly to the court.  They are matters about which I am unconcerned.  They are matters the tenor of which has been the subject of numerous previous affidavits and determination by me.

10. The real issue, in my opinion, is the claim by the husband that his medical circumstances prevent and prohibit him from attending court and prevent and prohibit him from conducting his case.  And that is the matter that, frankly, I need to give regard to.  I do not propose to go back to the first reports that were filed but I note that a medical certificate by Dr Z demonstrates that he was examined – that is, the husband – was examined by the doctor on 30 January 2014 and, in his opinion, the husband was suffering from, and I quote, “a medical condition” and is unfit for appearance in court from Thursday, 30 January 2014 to Friday 28 February 2014 inclusive with a further note, and I quote:-

    May return sooner.  His clinical condition has improved.

11. That medical certificate was supported by a report from Dr Z directed to me and dated 30 January 2014.  This report has been the subject of further consideration by me but I note that the report contains scant information and, when I gave it further consideration as part of the earlier application of the husband, I did not consider it provided, in any way or circumstance, a sufficient and detailed recitation of the medical issues that affect the husband and how they would manifest themselves in his ability to conduct proceedings.

12. As it turns out, of course, the duration of the medical certificate was until 28 February 2014, today’s date is 26 February 2014 and whilst Dr Z had clearly thought, out of an abundance of caution, a month should elapse, it is significantly close to that period.  In saying that, I do not want to create the impression that I give any significant weight to the medical certificate that was prepared. 

13. As I have already commented in my earlier reasons, the report of 30 January 2014 also talk of the advantage to the husband of seeking his own legal representation and that the implication, although it is not clearly set out, is that Dr Z considers that if the husband had been represented, then it would significantly reduce the extent that they are proper conditions, his anxiety, his distress and his depression.  As again I have said in earlier reasons, litigation is stressful for all parties, it creates anxiety for all and it would not be uncommon in this place that litigants to proceedings suffer some level of depression simply because they are engaged in long-running, stressful litigation. 

14. That in of itself is not sufficient to satisfy the grounds for an adjournment to the proceedings.  Dr Z further provided a report this time of 18 February 2014 and that report, again, is marked private and confidential.  I am uncertain whether that emanates from Dr Z’s office or if the document has been the subject of addition by the husband but, in any event, the import and the substance of Dr Z’s further report is as follows, and I quote:-

    I am writing to confirm that I have been on leave over the last two weeks returning to work yesterday.  [The husband] consulted me yesterday and again today regarding his mental health issues.  I understand that an order was issued since my last letter which included a decision that if [the husband] is to rely on my opinion, then I would need to attend court in person.  I have explained to [the husband] that while I am willing to support him by providing correspondence such as this, I am not able to attend court on his behalf.  However, if the court wishes to verify the validity of any correspondence that I’ve received I am more than happy to receive a phone call at the available number.

    Today I have completed a mental health care plan and referred [the huband] for assessment with a psychiatrist in order to obtain assistance with a diagnostic and treatment strategy. 

15. I have no doubt as to the validity or the veracity of the correspondence that appears to emanate from Dr Z, save for where remarks are directed to what appears to be the stamp, “Private and Confidential”, placed on his documents.  As to the substance of the thoughts of Dr Z I have no doubt and no difficulty in accepting that they emanate from the Doctor.  Accordingly, I do not need to ring Dr Z to confirm the veracity of his correspondence in his reports.  I note that Dr Z is not willing and not able to attend court on his behalf. 

16. In any event, the second report of 18 February 2014 takes the consideration no further. There is no clear plan.  There is no clear diagnosis.  There is no clear link between the issues that Dr Z says relates to the diagnosis and the presentation of the husband with his inability to conduct the proceedings, or, indeed, intend with any future prognosis. The difficulty is that it is a matter for the husband to present information to the Court that comes up to a proper standard that would assist the Court in understanding the conditions and the impediments that are set and when it would be likely that the proceedings could resume.

17. I return to the application. To the extent that the affidavit refers me to the medical certificates and reports of Dr Z, they have been the subject of comment by me, and I do not consider that the more recent report or letter from Dr Z, in fact, takes the matter any further than my earlier consideration of 31 January 2014.  The further affidavit then talks of the husband’s severe stress and how it affects his bowel issues in respect of excessive acid, and, I quote, “significant pressure on his intestines”.  I am clearly not certain what that is all about.  It does not appear to me to be the subject of direct comment by Dr Z and to the extent that there are matters of medical issues raised, Dr Z’s reports do not assist. 

18. The affidavit also concerns matters of the Court’s position regarding adjournments, and those matters are set out in section – paragraph 16 and 17 of the affidavit.  And I am – I do not think I need to make comment about that.  They are not matters of evidence.  They are simply a submission or an opinion by the husband as to how he considers the court should operate in respect of matters.

19. Paragraph 18, 19 and 20 refer to matters of fraud.  I have asked the husband whether he considers that, in some way, I have been part of the fraud.  The husband says that that is not his position, and that the fraud relates to the allegation or the issue that phone calls were allegedly made to the husband on 31 January 2014, but that he says he never received the phone calls.  And he then from that extrapolates a conclusion that, in fact, the phone calls were not made, and that if I told him that the phone calls had been made then I was clearly misinformed, and that, in some way that relates to issues of fraud.  I do not – I do not think, for the purposes of this application, I need to consider this aspect further.

20. Paragraph 21 and 22 of the affidavit relate to matters of – allegations of misuse of discretion and abuse of power.  It is asserted that I made reference to questionable case law. There then is a reference to Justice Finn in respect of comments that she apparently made, which I quote, “confirm the bias and low regard applicable to a litigant in person”.

21. Paragraph 22 of the affidavit makes the following allegation:-

    events have cleverly been either omitted (on purpose) or changed or distorted to misrepresent the real events.

22. I assume that the husband directs paragraph 22 to me and to the reasons that I have given of various occasions in this case.  The assertion in paragraph 22 is that I engaged in “a technique designed to interfere with or pervert the course of justice.”

23. The final matter at paragraph 23, which annexes a report of Dr G, I have no idea what this is about.  I do not know whether Dr G is a medical doctor or what his relevant qualifications are, but it says that the husband appeared before or attended upon Dr G on 24 February 2014 regarding lower back pain and interscapular soreness.  I do not know whether Dr G is qualified to provide any opinion or assessment as to any matters relating to psychological stress, psychiatric functioning or, indeed, the interrelationship and overlay between those matters.  It is not a report that, frankly, assists me at all.  So in respect then of the application filed through the portal on 25 February 2014, I decline to make the orders sought in paragraphs 1, 2 and 3 of the said Application in a Case, and accordingly, I dismiss the Application in a Case filed 25 February 2014. 

24. This day, the husband makes a further oral application for a stay of the proceedings pending the various appeals that apparently have been commenced by him.  That application for a stay has been heard and determined by me previously, and I rejected it.  And I propose to do the same with respect to this oral application as I have done with the previous application.  There is no formality to it;  there is no notice given to Ms Morosini in respect of it;  and there is nothing put by the husband in submissions which, in anyway, differentiates or separates this application, even were it to be properly formulated and presented, from the previous application for a stay which was heard and determined.

25. Accordingly, I do not propose to make any order in respect of the stay of the proceedings.  The husband makes a further oral application seeking an extension of time to enable him to attend upon a psychiatrist and to obtain a report and for that report to then be presented to the court.  Again, that application is made without notice and in circumstances where the husband is not able to indicate to the court what steps he has taken, and when there would be an appointment, and with whom, and with what circumstance or certainty that process not just the provision of a report, but what treatment program, if any, would be required.

26. It is a matter for the husband to present his case in the way that he intends to do so, and he considers is to his advantage.  In respect of the matter, I have rejected the connection between the evidence of Dr Z and the husband’s ability to attend the proceedings.  Obviously, by necessary implication, I do not consider that the scant information that the husband would have the court accept in respect of the process by which he is to see a psychiatrist, have some assessment process put in place and then seek a report, would carry, frankly, any weight.  So I reject the oral application of the husband for an extension of time.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 26 February 2014.

Associate: 

Date:  29 April 2014