Nest and Nest (No 4)

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.