Nest and Nest (No 4) - [2014] FamCA 553

FAMILY COURT OF AUSTRALIA

NEST & NEST (NO. 4)

[2014] FamCA 553

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – part way through trial the self represented husband failed to attend – facsimile transmission sent to registry the day prior foreshadowing husband’s non-attendance – husband alleged medical issues affected his ability to attend – consideration of Buljubasic v Buljubasic (1999) FLC 92-865 – discussion as to whether matter should proceed on an undefended basis – proceedings adjourned.

Family Law Act 1975 (Cth) s 81

Buljubasic v Buljubasic (1999) FLC 92-865
Diggelen & Diggelen [2012] FamCA 940

APPLICANT:

Mr Nest

RESPONDENT:

Ms Nest

FILE NUMBER:

ADC

1821

2008

DATE DELIVERED:

Friday, 31 January 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

Friday, 31 January 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Ms Morosini

Orders

That the further hearing of the matter on 31 January 2014 be vacated.
That the matter be adjourned for hearing as a reserve listing for three days commencing Wednesday, 19 February 2014.
That the husband attend on 19 February 2014 either in person or by way of legal representative properly instructed.
That if the husband seeks to rely upon medical evidence from Dr Z or any other medical practitioner or psychologist for the purpose of asserting that it is not proper for him to conduct the proceedings and that the trial as currently listed must be further adjourned, then that evidence is to be given on oath and in person by such doctor or doctors, and be available for cross-examination on 19 February 2014 at 10 am.
That by 4 pm on 7 February 2014 the wife’s solicitors do file an affidavit detailing the extent of the costs thrown away in respect of the hearing on 31 January 2014, and the method and manner of the calculation of those costs.
That by 4 pm on 7 February 2014 the wife’s solicitor do forward correspondence to the husband setting out and informing him of the following matters:
(i)That the matter proceeded today in his absence.
(ii)That the proceedings were adjourned for further hearing of the trial for three days commencing 19 February 2014.
That if the husband does not attend on the adjourned date either personally or by legal representation final orders in respect of the proceedings may be made in his absence.

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

EXTEMPORE REASONS FOR JUDGMENT

The trial in the matter of Nest commenced before me on Tuesday, 28 January 2014. I do not propose to repeat the long history of this matter. And I note that on the first day of trial the wife was represented by Ms Morosini,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nest and Nest (No 4)

Details

AGLC: Nest and Nest (No 4) [2014] FamCA 553
Case: [2014] FamCA 553
Decision Date: 31 January 2014

CaseChat Overview and Summary

In the Family Court of Australia, Justice Berman considered an application for an adjournment in proceedings between a husband and wife. The husband, who was self-represented, failed to attend a scheduled hearing part way through the trial. The day prior, a facsimile transmission was sent to the registry foreshadowing his non-attendance, with the husband alleging medical issues affected his ability to attend.

The primary legal issue before the court was whether the proceedings should proceed on an undefended basis or be adjourned, given the husband's absence and his stated medical difficulties. The court was required to consider the principles governing adjournments, particularly in circumstances where a party fails to attend a hearing.

Justice Berman applied the principles discussed in *Buljubasic v Buljubasic* (1999) FLC 92-865, which addresses the circumstances under which a matter may proceed in a party's absence. The court determined that the matter should be adjourned to allow for the husband's attendance, either in person or through a legal representative. Crucially, the court ordered that any medical evidence relied upon by the husband to justify further adjournment must be presented on oath and be subject to cross-examination.

The court made several orders, including vacating the hearing scheduled for 31 January 2014 and adjourning the matter for a three-day hearing commencing 19 February 2014. The husband was directed to attend on this new date, either personally or by legal representative. The court also stipulated that if the husband failed to attend the adjourned hearing, final orders could be made in his absence. Furthermore, the wife's solicitors were ordered to file an affidavit detailing costs thrown away and to inform the husband of the proceedings and the adjourned hearing date.

Orders

Orders of the court

1. That the further hearing of the matter on 31 January 2014 be vacated.

2. That the matter be adjourned for hearing as a reserve listing for three days commencing Wednesday, 19 February 2014.

3. That the husband attend on 19 February 2014 either in person or by way of legal representative properly instructed.

4. That if the husband seeks to rely upon medical evidence from Dr Z or any other medical practitioner or psychologist for the purpose of asserting that it is not proper for him to conduct the proceedings and that the trial as currently listed must be further adjourned, then that evidence is to be given on oath and in person by such doctor or doctors, and be available for cross-examination on 19 February 2014 at 10 am.

5. That by 4 pm on 7 February 2014 the wife’s solicitors do file an affidavit detailing the extent of the costs thrown away in respect of the hearing on 31 January 2014, and the method and manner of the calculation of those costs.

6. That by 4 pm on 7 February 2014 the wife’s solicitor do forward correspondence to the husband setting out and informing him of the following matters:

(i) That the matter proceeded today in his absence.

(ii) That the proceedings were adjourned for further hearing of the trial for three days commencing 19 February 2014.

7. That if the husband does not attend on the adjourned date either personally or by legal representation final orders in respect of the proceedings may be made in his absence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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