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 of 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

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. 

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

1. 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, her solicitor, and Mr Nest, the husband, appeared as he has always done, in person and without representation.  In the background to the hearing there were various earlier applications in a case, in particular filed on 24 December 2013 and 9 December 2013, wherein the husband sought to adjourn the trial for various reasons.  One of those reasons relates to an earlier application made by the husband that I disqualify myself, and that application was refused. 

2. The husband also sought to adjourn the proceedings on the basis that he had not been given an appropriate or sufficient opportunity to prepare his case;  that application was refused.  The husband also raised matters in what I might describe as a tangential fashion, that his health had the potential to have an impact.  The husband also raised issues relating to his health in connection with the temperature of the day, in respect of the commencement of the proceedings and what the husband anticipated would be, in his words, “The upcoming heatwave”.  Those applications were refused; the trial proceeded.  The wife was called to give her evidence.  The husband then commenced his cross-examination of the wife and at the conclusion of the second day of hearing, namely Wednesday, 29 January 2014, the husband was some way through his cross-examination of the wife. 

3. It is reasonable for me to make the observation that the husband appeared to be able to properly conduct the proceedings; there appeared to be no issue or concern and there was no aspect in the proceedings that any health consideration became self evident or so apparent or obvious that to the casual observer it presented a barrier to the proceedings continuing. The husband did, however, as part of his assertion that health considerations were relevant not just to the proceedings in terms of the settlement of property, but also to matters relating to his ability to conduct the trial, tender a document at the commencement of the trial which purported to be a medical report from Dr U, dated 27 January 2014.   

4. The transcript of that which passed between me and the husband in relation to the original document that the husband sought to tender was to the effect that I did not consider it appropriate to receive a document which purported to be a medical certificate or a medical report, in circumstances where the document had been the subject of significant redaction in relation to the details of Dr U and also the document had a number of stamps in respect of a claim of confidentiality which the husband, when asked, agreed had been placed on the document by his hand.  That is, the report was not the original document and had been the subject of significant interference by the husband.  He did, however, have the original document and ultimately was prepared for that document to be provided to the Court.  That document became Exhibit 1 in the proceedings.  The report confirms that the husband attended on Dr U on 27 January 2014, seeking an opinion and in the words of Dr U, and I quote: 

   Re a large number of symptoms and whether in my opinion this would constitute medical grounds to seek an adjournment for further investigation.

5. 27 January 2014 was the Australia Day holiday and the report confirms that Dr U had not been the usual medical practitioner that the husband consulted.  There were a number of matters raised in the report, but I was not satisfied that the report extended to a point where I could be confident the medical issues raised by the husband with Dr U and the subject of the comment of the report were sufficient to establish an inability of the husband to attend the Court proceedings.  There is a reference in the report of Dr U in the following terms, and I quote:

   Psychologically he presents with symptoms not inconsistent with anxiety, stress and a degree of depression.

6. Whilst I have no basis to reject that diagnosis by Dr U, and Ms Morosini did not ask me to do so,  it is, however, within my discretion to form a view that the information provided by Dr U in relation to the attendance by the husband contained scant detail.  And the fact that a litigant presents with symptoms of anxiety, stress and a degree of depression is not, in my view, in and of itself sufficient justification or ground for a party to be excused from attending litigation.  More is required; that report did not provide or go that far and I think it would be a reasonable statement that most litigants, indeed, including the wife in these proceedings, would find the litigation that they are involved in capable of causing anxiety and stress and even a degree of depression.

7. I was not satisfied with the report of Dr U as to its proper basis and, in any event, I made remarks not dissimilar to these remarks at the time that I refused the application of the husband for an adjournment of the proceedings.  The matter was to continue on 30 January 2014.  And it was the case that whilst it had originally been listed for two days, because I apprehended that the entirety of the week would not necessarily be required, there was another matter listed for the morning of that day;  that matter was not related to the matter of Nest.  Unfortunately, that matter extended beyond the morning and the parties and solicitor were advised that the Court could not accommodate the hearing in the matter of Nest in the afternoon.  That is regrettable and to the extent that there was inconvenience caused to the wife, the husband and the wife’s solicitor, the Court offers its apology. 

8. I am advised, however, that there had been some communication between the husband and the court.  And whilst I will come to that communication issue in a moment, it is proper to note that there was no misunderstanding that the matter would proceed today.  To some extent, the more recent events have made that comment unnecessary, but I think in terms of the procedural history it needs to be said.  So the anticipation of the court and as now transpires, that of the wife and her solicitor, is that the matter of Nest would continue today;  that is, 31 January 2014, with the continuation and hopefully the conclusion of the husband’s cross-examination of the wife.

9. On 30 January 2014 there was, apparently, significant communication between the husband and the court.  To the extent that I have indicated to the husband it is not proper that he attempts to communicate with me directly or at least my chambers directly, in circumstances where the matter is not a matter of joint agreement between he and Ms Morosini, those matters have been made clear to the husband.  Also it has been made clear to the husband that because he communicates with the registry, he should not assume that that is an end to his obligation in respect of the proper attendance before the court and his involvement in the proceedings. 

10. Clearly it could not be so, because otherwise the proper business and order of the Court could be thwarted by parties either not turning up and/or sending communication to the court foreshadowing that they would not be in attendance.  The husband did not appear this morning at the commencement of the trial.  And it came to my attention that as part of the communication that has passed between the husband and the Court a facsimile transmission of a further medical report dated 30 January 2014 from Dr Z has been provided to the Court.

11. I have a copy of it and I have given the contents of that report some consideration.  Unfortunately, Ms Morosini was not given the courtesy of that correspondence – or that communication in relation to the report and she did not have an opportunity to consider it before she attended.  I gave her a copy of that document and I gave her an opportunity to speak to her client as to a way forward.

12. I do not propose to go into the report in any detail.  The report of Dr Z has the advantage over the earlier report of Dr U in that Dr Z appears to be the general practitioner involved in the treatment and care of the husband, at least over the last seven months.  Consistent with the matters raised by Dr U, Dr Z reports as follows, and I quote:

    Currently he has multiple physical and psychological symptoms consistent with a reaction to a very stressful situation.  I’ve undertaken a psychological questionnaire, which has indicated a high level of psychological distress.  As I understand he has been attempting to represent himself in Court whereas his ex-spouse has engaged legal representation.

13. Dr Z says further, and I quote:

    I feel that his ability to cope with this (the proceedings) is significantly impaired at present and I have concerns that this may lead to a sub-optimal outcome to him legally.

14. Somewhat surprisingly Dr Z refers to matters relating to heat;  that is the temperature of the day and for reasons that are not expressed other than the general concept that the husband needs time to - and I quote - “recuperate from his physical and psychological symptoms and also to allow for [the husband] to seek and engage his own legal representation,” Dr Z considers that a period of one month adjournment of the proceedings would be beneficial or appropriate.

15. With respect to Dr Z I am not of that view.  The report I consider does no more than highlight that the husband suffers a level of distress and anxiety in relation to these proceedings and again, I would be surprised if any litigant, other than perhaps the most sanguine or robust of litigants, would not feel a high level of stress, anxiety and even evidence some aspects of depression or symptoms of depression in relation to Court proceedings.  That regrettably is the nature of litigation.

16. The report does not provide any reason why one month is required, nor does it set out any basis upon which a treatment plan or program would be put in place, the nature of the manifestation in a practical, physical and organic sense in respect of the impairment of the husband’s ability to partake in the proceedings as a result of this, the alleged stress and anxiety, and the reference in the report to matters of legal representation and a sub-optimal outcome, together with references to a heat wave, are matters that do not seem to me to be within the appropriate province of a medical practitioner but rather have about them a recitation of issues that the husband has raised by history.

17. The husband, however, is not here and the proceedings are obviously impaired and whilst the wife is not happy about it, Ms Morosini, with some significant and substantial reluctance, concedes that the matter can’t proceed today by way of a hearing that doesn’t involve the husband’s attendance.  Out of an abundance of caution I have sought that my Court officer attempt to contact the husband by telephone.  I considered it important that the husband be aware of any matters that are raised by Ms Morosini and obviously any response by me.

18. I have contacted – or the Court has attempted to contact the husband on the following numbers;  namely his mobile number …, and his home fixed line number, namely ….  They are the numbers that are on the Court record.  They are numbers to which the husband can be contacted and, indeed, earlier in the week when the husband was late for Court there was apparently some communication between the husband and the wife as to his whereabouts.

19. The husband, however, both did not answer those numbers and there is no assistance given by any reasonable avenue or opportunity that the Court has to try and contact the husband.  That, of course, is regrettable because irrespective of whether there is or is not merit in the report of Dr Z it is difficult to understand how the husband would not understand it necessary to be in contact with the Court in case there were matters that he needed to know about.

20. It was possible that I would not have found favour in adjourning the proceedings.  It is possible that Ms Morosini would have made an application that I proceed effectively without the husband’s attendance.  All of those matters are matters about which the husband should have made himself available to be aware of, but that is not the case.  The manner in which the husband has conducted himself raises issues in respect of the extent to which I should have regard to communication passing between a litigant and the Court in circumstances where the party does not turn up.

21. The Full Court have had an opportunity to consider this issue in a decision of Buljubasic v Buljubasic (1999) FLC 92-865. I do not propose to go into the facts of that case, save to note that in that matter the trial judge had listed the matter for trial on a particular day, that there had been a number of attempts to adjourn and put off that trial date, all of which have been refused by the trial judge, that the matter proceeded – that the husband had failed to appear. The trial judge stood the matter down to enable the husband to be contacted and to inform the husband that the matter was proceeding. It wasn’t possible to contact the husband and in the exercise of his Honour’s wide discretion the matter proceeded by what was described then as “an undefended hearing.”

22. Before judgment had been delivered the trial judge received a facsimile transmission from the husband, which had been received in the Registry on the previous day, namely the day on which the husband did not appear, and the trial judge determined to proceed on an undefended basis.  The facsimile transmission contained some issues in respect of the explanation as to why the husband did not attend but essentially it was that the husband needed to obtain some further information and some further documents.

23. His Honour then declined to adjourn or to further reserve the publication of his judgment.  He delivered judgment and that judgment, not as to the property settlement part of the judgment or the orders for property settlement but rather as to the judge’s decision to proceed to hear the matter on an undefended basis was the subject of an appeal.  The appeal was dismissed and the Full Court found that the trial judge made no error or discretion in proceeding to hear the matter in the absence of the husband.  The husband was responsible for his conduct of the proceedings.  He was aware of the hearing date and he failed to appear without any explanation.  Their Honours went on to say as follows:

    It is ordinarily improper for litigants to seek to communicate with the trial judge by sending a facsimile or other communication to the Court or the Registrar.  A litigant seeking an adjournment or extension of time in respect of a matter listed for hearing must either appear in Court on the listed date or send a representative to make a proper application for relief.

24. Finn J, in addition to the general findings of the Full Court said as follows and I quote:

    I would also want to endorse strongly the comments that have been made by the presiding judge regarding the importance of adherence to the traditional practice that those who seek from the Court an adjournment of their matter should appear themselves or by legal representative to seek the adjournment.  I deplore the apparently ever-increasing practice of sending letters, faxes and telephone communication to the Court for the purpose of seeking an adjournment.

25. An argument was raised by the appellant in that case that in the trial judge determining to proceed in the absence of the husband or the father he should have anticipated that there would be further proceedings, namely an appeal, and that therefore offended section 81 of the Family Law Act1975 (Cth) which obliges the Court to make orders that as far as practicable finally determine the financial relationship between the parties. But, of course, his Honour found that it was equally arguable that in giving effect to that section the converse could have occurred, namely that the wife may have taken further Court proceedings.

26. Whilst I do not propose to comment on the case the matter was further – or again considered of more recent date, this time by Johnston J in the decision of Diggelen & Diggelen [2012] FamCA 940 where an application for an adjournment by the husband was refused on the basis that the husband alleged there were medical and other issues affecting his ability to attend, but that there was evidence presented to the Court which suggested that the Court should not have confidence in the matters as indicated by the husband relating to his medical circumstances.

27. It is clear that the husband is not in attendance today, and either he should have been in attendance or he should have had representation.  He has provided a medical report, and whilst I am entitled to have no regard to it on the basis that it is communication between the Court and the husband, equally it is part of my discretion that I can have regard if I consider it relevant to do so.  I think I am obliged to have regard to it.  Unlike the circumstances in the decision of Diggelen, just referred to, I have a document that purports to be a medical report from a treating medical practitioner, namely Dr Z.

1. To the extent that I have some concerns about the report in terms of its construct, in terms of the fact that it is a facsimile, in terms of it not being an annexure to an affidavit, I do, but more importantly I have concerns as to whether or not the report really presents a proper basis for what it asserts, namely that the husband is not able or should not be compelled to conduct the proceedings for a period of one month, although I note that in quotes it says as follows:

   “May return soon if clinical condition has improved.”

2. I am not prepared to put this matter off for a month.  I consider that the uncertainties in respect of the matter, the doubts I have about the report and the disquiet that the Court properly has about the method and manner by which the proceedings today cannot proceed, namely occasioned by the husband simply not attending, and despite all reasonable efforts by my Court officer to make contact with the husband that has not been possible, I am not prepared to adjourn it for a month, but rather a significantly shorter period of time.

3. There is an opportunity for the matter to be listed for further hearing three days commencing 19 February 2014 and I propose to list it in that spot, but at this stage as a reserve matter, although there is some confidence that it will gain some level of primacy.  I intend to make a further order that if the husband wants the Court to give further consideration to matters relating to his medical condition in the sense that it interferes with his ability to conduct the proceedings, the husband will need to call evidence from Dr Z.  And I also note that Ms Morosini makes an application for the wife’s costs of today – so the wife’s costs thrown away be her costs.

4. I’m going to reserve that application to the further hearing of the matter, but I will also order that Ms Morosini or her client prepare a short affidavit which sets out costs that she seeks and the method and manner by which those costs are calculated.  The matter will proceed on the next occasion even if the husband does not attend.  If there is no attendance by the husband and he still seeks a further adjournment that will need to be undertaken by counsel or a solicitor or the husband in person, but I will not be entertaining a further adjournment or a disruption to the proceedings if the basis for any further non-attendance by the husband arises by way of communication between the husband and the Court Registry.  That is bringing to account those matters raised by their Honours in Buljubasic.  Either the husband needs to appear or he needs to be represented.

5. And importantly, I note that whilst it is difficult to understand why Dr Z would opine matters relating to legal representation by the husband, if that, indeed, is an aspect, presumably the husband has provided that history or advice to Dr Z, then it may be that the advent of the husband seeking a legal representation is now expedited.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 31 January 2014.

Associate: 

Date:  19 February 2014