In the recent decision of Novikov & Novikov [2024] FedCFamC1A 56, the Full Court of the Federal Circuit and Family Court of Australia has clarified the standards that medical certificates must meet when seeking an adjournment or explaining non-attendance in family law proceedings.
Background The case involved an appeal by the wife against orders made by a judge in October 2023, which had set aside earlier orders from June 2023 dismissing the husband’s various applications. The October judge accepted a pro forma medical certificate stating the husband was “unfit for work” as a reasonable excuse for his non-attendance in June.
The Appeal Decision On appeal, Deputy Chief Justice McClelland found the primary judge erred in several respects:
- Inadequate Medical Evidence: The medical certificate relied upon did not sufficiently explain how the husband’s medical condition actually prevented him from participating in the video hearing in June or instructing his lawyer. A bare statement of being “unfit for work” was irrelevant to this critical question.
- Failure to Apply Two-Stage Test: Under Rule 10.13 of the Family Law Rules 2021, the judge first needed to assess if there was a reasonable excuse for non-attendance, and only then consider if participation may have led to a different outcome. Here, the primary judge wrongly stopped at the first stage.
- Re-Exercise of Discretion: Given the lengthy history of the matter, the appellate court re-exercised its discretion under s36 of the Federal Circuit and Family Court of Australia Act 2021 to substitute its own orders dismissing the husband’s applications, rather than remit the case back.
Implications for Legal Practice This decision sets a higher bar for medical certificates relied upon in adjournment applications:
- Certificates must specifically address how the medical condition precludes the person’s participation in the hearing, even if by remote video or phone.
- Mere statements of being “unfit for work” will be inadequate, without explaining the nexus with inability to participate at all.
- Practitioners should ensure clients provide detailed medical evidence meeting this threshold, or not expect adjournments to be granted.
- The two-stage test under Rule 10.13 must be properly applied in determining applications to set aside orders made in a party’s absence.
This case highlights the Court’s shift to a higher standard of medical evidence in assessing reasonable excuses for non-attendance, in line with the increasing normality of remote hearings. Parties and practitioners alike should take note of this development.
A true success for the Sydney family lawyer Mr Elee Georges of G & S Law Group !
=====
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Novikov & Novikov [2024] FedCFamC1A 56
Appeal from: Novikov & Novikov [2023] FedCFamC2F 1471
Appeal number: NAA 313 of 2023
File number: PAC 5790 of 2020
Judgment of: MCCLELLAND DCJ
Date of judgment: 11 April 2024
Catchwords:
FAMILY LAW – APPEAL – Leave to appeal – Appeal against interlocutory orders – Where the applicant would be prejudiced in obtaining long-outstanding child support which has since been recovered on her behalf by the Child Support Agency if leave to appeal is not granted – Application of Medlow & Medlow (2016) FLC 93-692 – Where the applicant would suffer a substantial injustice if leave to appeal was not granted – Where the primary judged erred in considering that the medical certificate tendered was adequate for the purpose of explaining non-attendance – Leave to appeal granted.
FAMILY LAW – APPEAL – Where the appellant contends that the primary judge misapplied the discretion conferred by r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant and second respondent contend that there was no reasonable basis for the primary judge to set aside orders made by another judge – Where the first respondent husband did not appear nor participate during the appeal hearing – Where the appellate court deems it appropriate to re-exercises discretion pursuant to s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Appeal upheld – Orders made to vacate all further listings filed by the first respondent – Orders made for the first respondent to pay the costs of the appellant and second respondent in a lump sum amount within 28 days.
Legislation:
Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 12.17
Cases cited:
House v The King (1936) 55 CLR 499; [1936] HCA 40
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Scott (No 4) [2023] FedCFamC1A 239
Stoian & Fiening (Costs) [2014] FamCA 944
UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107
Number of paragraphs: 64
Date of hearing: 11 April 2024
Place: Sydney
Counsel for the Appellant: Mr Teoh
Solicitor for the Appellant: G & S Law Group
The First Respondent: Litigant in person (did not participate)
Counsel for the Second Respondent: Mr Kaplan
Solicitor for the Second Respondent: Hunt & Hunt Lawyers
ORDERS
NAA 313 of 2023PAC 5790 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS NOVIKOV
Appellant
AND:
MR NOVIKOV
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
11 APRIL 2024
THE COURT ORDERS THAT:
- The appellant is granted leave to appeal.
- The Application in an Appeal filed by the appellant on 28 March 2024 is dismissed.
- Appeal NAA 313 of 2023 is upheld.
- Orders 2 and 5 made by the primary judge on 16 October 2023 be set aside and substituted with an order dismissing proposed Order 3 of the first respondent’s Application in a Proceeding filed 4 September 2023.
- The first respondent is to pay the appellant’s costs in the lump sum amount of $10,000 within 28 days.
- The first respondent is to pay the costs of the second respondent in the lump sum amount of $2,778 within 28 days.
- All further listings before the Federal Circuit and Family Court of Australia (Division 2) relating to the Further Amended Initiating Application filed by the first respondent on 31 March 2022, together with all other extant applications filed by the first respondent are vacated.
IT IS NOTED THAT:
A. By virtue of these orders, the orders made by Judge Myers on 29 June 2023 are reinstated including Orders 3(c)–(d), being as follows:
(c) The Applications as contained within the Further Amended Initiating Application filed 31 March 2022, are hereby dismissed.
(d) All other outstanding extant Applications made by the Husband are hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the Novikov & Novikov has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This matter involves an appeal by the appellant wife against orders made by the primary judge on 16 October 2023, setting aside orders made by another judge of the Federal Circuit and Family Court of Australia (Division 2). Those orders that were set aside were made on 29 June 2023. The basis upon which the orders of 29 June 2023 were set aside was that the first respondent husband did not appear in those proceedings and the legal representative who appeared on his behalf indicated that he was without instructions.
The decision by the primary judge to set aside the decision of the first judge was primarily as a result of the primary judge being satisfied that the first respondent had reasonable excuse for non-attendance, that excuse being ill health. In circumstances where the orders of 16 October 2023, which are the subject of the appeal, are interlocutory orders, it is necessary for the wife to seek leave to appeal. For reasons which follow, I simultaneously consider both the question of leave and the substance of the appeal.
In Medlow & Medlow (2016) FLC 93-692 (“Medlow”), the Full Court stated that:
… the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
(Emphasis in original)
It is first necessary to identify the parties in the proceedings. The applicant for leave is the appellant wife. The first respondent is the husband, who is the applicant in the primary proceedings. The second respondent is the Registrar of the Child Support Agency who, in accordance with the rules, has been served with relevant documents relating to the child support issues. The applicant wife and the second respondent both contend that there was no reasonable basis for the orders, made on 29 June 2023, to be set aside by the primary judge and that the appeal should be upheld. It is submitted that if the appeal is upheld, the Full Court should re-exercise discretion to, in effect, restore the outcome of the 29 June 2023 proceedings.
Significantly, the first respondent husband has failed to appear in this appeal. Additionally, he has failed to file a Summary of Argument in accordance with directions made by the appeals registrar. No explanation has been provided for those failures.
For reasons which I explain, leave should be given, and the appeal should be upheld.
BACKGROUND
Drawing upon and supplementing the appellant’s Summary of Argument filed 8 February 2024, which sets out the relevant procedural background, as follows.
On 2 November 2020, the primary proceedings commenced by the first respondent in the present proceedings (the applicant in the primary proceedings). In that application, the first respondent sought parenting orders, property orders and orders seeking a dismissal of a decision of the Child Support Tribunal of 3 April 2017.
On 31 March 2022, the first respondent filed and a Further Amended Initiating Application.
On 15 February 2023, the Court made final parenting orders with the consent of the parties and the Independent Children’s Lawyer. The proceedings in respect of the first respondent’s property and child support were adjourned to 29 June 2023 for final hearing.
On 29 June 2023, Judge Myers made orders dismissing the first respondent’s application for leave to commence proceedings out of time, discharging all previous orders and dismissing all applications as contained in the Further Amended Initiating Application filed 31 March 2022. His Honour made orders that the first respondent pay the appellant’s costs fixed in the sum of $29,496 and the second respondent’s costs (the Child Support Registrar) in the sum of $6,061.69, out of the trust account of the first respondent’s previous solicitors.
Subsequent to the orders made by the first judge on 29 June 2023, the Child Support Agency took action to recover arrears of child support payable by the husband, which totalled the sum of approximately $150,000. That action was taken in circumstances where one of the orders made on 29 June 2023 set aside a stay that had, up until the date of that order, precluded the Child Support Agency from recovering the arrears of child support.
By Application in a Proceeding filed on behalf of the first respondent, the first respondent sought injunctions against the disbursement of moneys pursuant to the orders that were paid to the appellant by the Child Support Agency on or about 28 July 2023; an injunction in relation to the costs awarded to the appellant pursuant to the June Orders and to set aside the June Orders, in particular Orders 3(a)–(d).
On 16 October 2023, on the first return date for the Application, the primary judge made orders, inter alia, setting aside Orders 3(a)–(f) of the June Orders and otherwise dismissing the Application. The Court made further procedural orders in relation to the property and child support orders sought by the first respondent in his Further Amended Initiating Application.
GROUNDS OF APPEAL
The grounds of appeal are set out in a Notice of Appeal filed 13 November 2023. There are three grounds of appeal, as follows:
- In ordering that the Orders 3(a) to (f) of Judge Myers made on 29 June 2023 be set aside, [the primary judge] misapplied the discretion that the Court has under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
- His Honour failed to afford the Applicant and Second Respondent procedural fairness by proceeding to hear and determine the application on the first return date being 16 October 2023 and by admitting into evidence material served by the Applicant that was not served on the Respondent in accordance with orders made by [the primary judge] on 24 August 2023.
- His Honour erred by setting aside the costs orders in 3 (e) when those orders related, at least in part, to the parenting proceedings that remained finalised and that were not subject to an Application in a proceeding to set them aside.
For the purpose of determining the question of leave and the substance of appeal, it is only necessary for me to consider the first ground.
THE DECISION OF THE PRIMARY JUDGE
The primary judge noted that r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) empowers the Court to set aside an order, for reasons which include the non-attendance of a party to the proceedings.
Relevantly, r 10.13(1)(a) of the Rules provides that the Court may at any time vary or set aside an order if it was made “in the absence of a party”.
In determining that it was appropriate to set out the orders made by the Judge Myers on 29 June 2023, the primary judge stated at [3] of his reasons that:
The father’s evidence before the Court at this interim hearing indicates, on the balance of probabilities, that he was sick on 29 June 2023 and, thereby, could not appear before Judge Myers and/or could not give adequate instructions to [his solicitor]. Under Rule 10.13 of this Court’s Rules, the Court may at any time set aside an Order if it was made in the absence of a party. Again, the Court finds that the father did not appear before Judge Myers on 29 June 2023 and/or was unable to give adequate instructions to [his solicitor], because he was sick. Accordingly, the Court sets aside Orders 3(a), (b), (c), (d), (e) and (f) of Judge Myer’s Orders dated 29 June 2023.
It is apparent from that passage that the decision of the primary judge to set aside the earlier orders was his satisfaction that, on 29 June 2023, the applicant husband was “sick”, such that he was unable to participate in the proceedings or give instructions to his legal advisor.
RELEVANT PRINCIPLES
In circumstances where this is an appeal against an exercise of discretion by the primary judge who set aside the earlier orders, it is necessary for an appellant to establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 505 which establishes that appellate intervention may be required where a primary judge:
(1) Acts upon a wrong principle;
(2) Allows extraneous or irrelevant matters to guide or affect the decision;
(3) Mistakes the facts;
(4) Fails to take into account some material consideration; or
(5) Makes a decision that, upon the particular facts, is unreasonable or plainly unjust.
The relevant principles to apply in determining whether orders made by the Court should be set aside as a result of a party’s non-attendance were succinctly summarised by Austin J in Scott (No 4) [2023] FedCFamC1A 239 (“Scott (No 4)”) where his Honour said at [24]:
Before the Court will be persuaded to vary or set aside an order made in a party’s absence, the aggrieved party must be able to demonstrate, first, a reasonable excuse for having failed to appear in the first instance, and secondly, reason to suspect the result might have been different had the party appeared and been able to present the case he or she intended (Allesch v Maunz (2000) 203 CLR 172 at [28] and [48]–[50]).
In essence, the test is in two parts: the first is the requirement for the party who failed to appear to establish a reasonable excuse for non-attendance; and second, if the Court is satisfied that the non-attending party had a reasonable excuse, the Court then moves on to consider whether there was, in any event, a reasonable prospect that the non-appearing party would have obtained a different outcome had they participated in the proceedings.
CONSIDERATION
In considering the grounds of appeal, I am satisfied that the primary judge erred in several respects: firstly, that he acted upon wrong principle; secondly, that his Honour considered irrelevant matters in determining that the respondent husband was unable to participate in the proceedings, and thirdly, he failed to take into account a material consideration.
In dealing with the test adumbrated by Austin J in Scott (No 4), I note the evidence presented by the first respondent to establish that he was sick included his lay assessment of incapacity as a result of pain that he attested he was suffering. In support of that assertion, the first respondent relied upon a medical certificate dated 28 June 2023 that had been marked as Exhibit “A” in the proceedings on 29 June 2023.
The question as to whether the first respondent’s ill health was such that he was unable to participate in the proceedings on 29 June 2023 needed to be considered in the context where the proceedings were to be conducted remotely by way of Microsoft Teams. That is, the parties were not required to physically attend Court.
The contemporary medical evidence relied upon by the first respondent was in the form of a pro forma medical certificate provided by the first respondent’s general practitioner which stated that the first respondent was:
Suffering from: Acute on chronic left groin pain with fever.
In my opinion, he/she will be unfit for his/her normal work from
29/06/2023 to 30/06/2023 inclusive.
(As per the original)
I infer that the certificate was pro forma insofar as the certificate refers to “his/her”, and also in terms of the relevant dates, it includes a pro forma space on the certificate to insert those dates.
The evidentiary material presented by the first respondent at the proceedings before the primary judge included an affidavit filed 1 April 2022, indicating that the first respondent has had issues with his groin since at least 2016. Despite that, it is quite apparent that, in the period subsequent to 2016, the first respondent has been able to engage with lawyers and participate in the legal proceedings at various stages since the proceedings were commenced in 2020.
Accordingly, in the context of that pre-existing condition, the medical certificate produced to the Court on 29 June 2023 is critical in determining whether the first respondent was incapable of participating in the electronic hearing on 29 June 2023.
His Honour was, with respect, not in a position to make that determination on the basis of the medical certificate, because it did not address the critical question. The critical question was whether the afflictions from which the first respondent was reportedly suffering were such that they precluded him from participating in the electronic hearing. The question as to whether the first respondent was or was not “fit for work” was irrelevant to that determination.
The relevant principles as to what constitutes an adequate medical certificate for the purpose of either adjourning proceedings or explaining non-attendance were helpfully summarised by Pepper J in UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at 42–51, as follows:
42 While each case turns on its facts, the medical evidence should, at a minimum, answer the central question of why – and not just whether – the medical condition will prevent a litigant from participating in a court hearing either in person or by some other means (for example, by telephone). It is this nexus that is critical.
43 To be sufficient, the medical evidence should identify in broad terms the medical condition that the person is suffering from, the symptoms of that condition insofar as they are relevant to a litigant’s participation in a court hearing, the severity of the condition, and its expected duration. The doctor providing the certificate must be clearly identified and the certificate must be signed and dated.
44 Absent this bare minimum the opposing party cannot, as a matter of fairness, test the cogency of the medical evidence and the Court does not have sufficient information before it to meaningfully exercise its discretion to grant the vacation sought. To the extent that the provision of an appropriately detailed medical certificate to the Court (and to the opposing party) results in a loss of privacy, this is the price that must be paid by a litigant in order for the Court to grant the indulgence of a vacation of hearing dates, a course that a Court does not undertake lightly having regard to the inevitable increased cost to the parties of the delay and the inefficient allocation of Court resources that results.
45 In Bobolas, the appellants appealed against a series of decisions and orders made against them by this Court. One of the appealed decisions is relevant to the present application, namely, a decision by Pain J in Bobolas v Waverley Council (No 3) [2015] NSWLEC 100 to refuse to set aside orders made against the appellants by Sheahan J. The appellants sought to rely on affidavit evidence that they had “defences to council claims, but [they] were too sick to attend the hearing to voice them in any way.” Attached to the affidavit was a number of what purported to be medical certificates relating to each of the three appellants. Only three of the certificates were considered by the Court of Appeal to be relevant to the hearing before Sheahan J (at [210]). The first “certifie[d]” that the author of the certificate (whose name was redacted) had examined the first appellant and that, in the author’s opinion “she was/is suffering from A MEDICAL CONDITION [and] she was/will be unfit for work up to and including 1.5.15.” The remaining two certificates related to the second and third appellants and contained similar language, however, they specified the conditions suffered by the second and third appellants as “CONTUSED L FOOT/ANKLE” and “CELLULITIS FEET”, respectively. Pain J rejected all of the medical certificates as having no probative value.
46 On appeal, McColl JA held that Pain J’s rejection of the certificates was “unexceptionable”. In doing so, she opined that (at [221]):
“221 A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the “critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing.”
47 McColl JA went on to conclude that the appellants’ medical certificates failed to address the “critical question” (at [222]).
48 In Pachkovski, in dismissing an application to adjourn a hearing based on the illness of the three applicants, Hodgson JA stated that (at [4]):
“4 Those medical certificates are not in a satisfactory form. They are not supported by any appropriately verified evidence from the doctor. They do not identify the symptoms or the degree of the alleged problem, so as to justify the assertion that the person would be unfit to attend court. They provide a wholly inadequate basis on which the court could be satisfied that there is a compelling reason why this matter, which has for some time been fixed for this date, should not proceed.”
49 In this Court, medical evidence tendered in support of an application to vacate hearing dates in Ross (No 13) has been rejected because (at [2]):
“2 …The medical certificate does not specify the condition said to render Mr Ross to be unfit to attend the remainder of today’s hearing in these proceedings, nor does it specify the nature of the medication and its effects. In addition, no explanation is given in the certificate as to the nexus between the unspecified medical condition Mr Ross is suffering from and his asserted inability to continue representing himself in these proceedings.”
50 The difficulties that arise when medical evidence is given in vague and broad terms were summarised in Magjarraj (at [22]):
“22 All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed “medical condition”, culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person’s health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.”
51 Finally, the Court of Appeal in Woodhouse considered an adjournment application arising from a factual matrix not dissimilar to the present case. There, an application was made by the applicant (a litigant in person) by way of an email to the Registrar attaching letters from the applicant’s treating doctor and a clinical psychologist. In holding not to grant the adjournment the Court determined that (at [23]):
“23 The Court was not satisfied that the medical and other material provided by Mr Woodhouse to the Registrar justified an adjournment for reason of any medical condition from which he may suffer. The note from his treating doctor indicates that it would be “ideal” if the hearing of the case were delayed so as to avoid “stressors”. The psychologist’s letter suggests without further elaboration that any attendance by Mr Woodhouse in court would be “ineffective”. Neither, in the Court’s opinion, showed that Mr Woodhouse’s condition in any practical sense would prevent him from attending before the Court to support his current application or that his doing so would exacerbate that condition or otherwise put his health at risk.”
Having regard to the principles set out in the authorities usefully summarised by Pepper J, I am of the view that, with the greatest respect to the primary judge, the medical certificate relied upon as justifying the respondent’s non-participation in the Court proceedings has no probative value. This is because the certificate did not address the critical question. That is, the nexus between what was described in the medical certificate, that he had “chronic left groin pain with fever”, and how that pain and/or fever was of such a nature that it precluded him from either participating in the Court proceedings by electronic means and/or instructing his legal advisor to appear on his behalf. The question as to the first respondent’s fitness for work was irrelevant to that determination.
The primary judge was therefore in error in failing to apply the proper principle. That is, requiring the medical certificate to set out the nexus between the symptoms described and the inability of the party to participate in the proceedings which were to be conducted by video link rather than in person.
Secondly, the primary judge allowed an irrelevant matter to affect his decision insofar as, for reasons that I have explained, the medical certificate relied upon by the first respondent lacked any probative value in explaining the reasons for the respondent’s non-attendance.
Thirdly, in dismissing the 29 June 2023 orders, on the basis that the first respondent had a reasonable excuse for non-attendance, it was then necessary for the primary judge to consider the second matter identified by Austin J in Scott (No 4). That is, to consider whether had the first respondent participated in the proceedings on 29 June 2023, there was a reasonable prospect of the outcome of those proceedings being different.
In circumstances where I have found that the primary judge was in error, it is unnecessary for me to consider the remaining grounds of appeal.
Accordingly, for these reasons, I am satisfied that the appellant has reasonable grounds for succeeding in the appeal.
I am also satisfied that the appellant would suffer a substantial injustice if leave to appeal was not granted, particularly in circumstances where, as a result of setting aside the orders of the first judge dated 29 June 2023, the appellant would be prejudiced in obtaining long-outstanding child support which has since been recovered on her behalf by the Child Support Agency.
Accordingly, I grant leave to appeal to the applicant and for the reasons that I have set out, I uphold the appeal.
RE-EXERCISE OF DISCRETION
The appellant and the second respondent have submitted that it is appropriate that myself sitting as a judge at appellate level, re-exercise discretion pursuant to s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), and specifically to re-exercise discretion by considering the first respondent’s Application in a Proceeding filed on 4 September 2023.
In the circumstances of this case, having regard to the overarching purpose set out in ss 67 to 68 of the FCFCOA Act, I am satisfied that it is appropriate for me to re-exercise discretion by considering that Application in a Proceeding filed on 4 September 2023.
In re-exercising discretion, I have had regard to the evidence that was before the primary judge which included the first respondent’s affidavits filed on 1 April 2022, 31 August 2023 and 12 October 2023, and also the Case Outline Document filed by the first respondent on 4 April 2022.
The first issue to be determined relates to the issue of whether the first respondent had a reasonable excuse for his non-participation in the proceedings on 29 June 2023 either by himself or by instructing lawyers.
In considering that question, I note the following. In his affidavit filed on 1 April 2022, the first respondent stated that the issues with his stomach and groin are longstanding, existing unfortunately since at least 2016. I further note that while those health issues have been longstanding, the first respondent has been able to participate in the proceedings at various stages and to instruct legal advisors to act on his behalf. For instance, in paragraph 31 of his affidavit of 1 April 2022, he indicated that in February 2019, he instructed legal representatives to commence new parenting proceedings and also to finalise property settlement, he also attests to a preparedness to participate in mediation.
At paragraph 36 of his affidavit filed 1 April 2022, the husband indicates that he instructed lawyers to commence the proceedings before the Court on 30 October 2020.
I have also had regard to the husband’s affidavit filed on 31 August 2023 wherein he states at paragraphs 4–6:
This matter was listed for hearing on the 29th June 2023. I was unable to attend or be present as my chronic issues centred around my groin and stomach areas had flared up, causing debilitating pain, lasting hours at a time. The pain described above commenced two days prior to the 29th June 2023 and every day right through to Sunday the 2nd July 2023.
I have previously submitted to the court at least two doctor’s report detailing my chronic illness, with the only recommended treatment, is through pain management as surgery was too high of a risk of causing further nerve damage issues. I have attached to this affidavit copies of the previously submitted medical reports by [Dr A] […] I am still currently a patient of [Dr A].
I have been suffering this chronic illness since 2015. I have been informed that the authenticity of the medical certificate produced on my behalf was raised on the 29th June 2023, in that I did so as to avoid appearing at the hearing. That is simply untrue and without merit. I have been patiently waiting for this matter to be heard for almost three years.
I note that no mention is made of any incapacity due to “fever”. The reference to the medical reports of Dr A confirm that which is not in dispute in the proceedings – the first respondent has had stomach and groin pain for a number of years which he states dates back to 2015. As I have noted, the first respondent has been able to participate in the legal proceedings at various times and to instruct legal advisors despite having that unfortunate underlying condition. The central issue is whether that underlying condition had, as he says in paragraph 4 of the affidavit filed 31 August 2023, “flared up”, to such an extent that it precluded his participation in the Court proceedings on 29 June 2023 in circumstances where those proceedings were conducted remotely, meaning that the first respondent could have participated from his own home.
I further note that it can be reasonably inferred, on the established facts, that the medical certificate dated 28 June 2023 was obtained by the first respondent as result of attending upon the medical practitioner who provided that certificate.
For reasons which I have set out earlier, the medical certificate is of no probative value insofar as it does not address the critical question. That is, the nexus between the “groin pain with fever” and the reasons for the first respondent’s inability to participate in the proceedings by electronic means. For instance, the certificate, itself, does not explain the nature of the fever and how groin pain is or is not related to the fever, the extent of the fever, and whether either the pain and/or the fever was such that he was unable to participate at all in the electronic hearing.
Insofar as the medical certificate refers to disability, it refers to the inability of the first respondent to attend his/her normal work for a two-day period. The certificate does not identify what that “normal work” was, nor how there is a relationship between the first respondent’s unfitness for “normal work” and the ability of the first respondent to have participated in the electronic hearing on 29 June 2023.
Similarly, there is no evidence, in the certificate, indicating why the first respondent’s condition was such that he was unable to telephone his legal advisors, who were on the record as acting on his behalf, to instruct them to participate in the proceedings on his behalf. Accordingly, in determining whether the first respondent had a reasonable excuse for his non-attendance on 29 June 2023, I give no weight to the medical certificate dated 28 June 2023.
In those circumstances, returning to the test adumbrated by Austin J in Scott (No 4), to which I have earlier referred, I am not satisfied that the first respondent had a reasonable excuse for his failure to attend Court on 29 June 2023, and, in those circumstances, it is unnecessary for me to move to consider the second question identified by Austin J. That is, whether, had the first respondent participated in the proceedings, there was a reasonable prospect of there being a different outcome.
In those circumstances, it is unnecessary to consider the appellant’s Application in an Appeal to adduce new evidence filed on 28 March 2024 and therefore, that Application will be formally dismissed.
Accordingly, for those reasons, I dismiss those parts of the first respondent’s Application in a Proceeding filed on 4 September 2023 that seek to set aside the orders of the first judge made on 29 June 2023.
In order to, in effect, restore the operation of the orders made on 29 June 2023, pursuant to s 36 of the FCFCOA Act, I also make ancillary orders vacating any further listings arising from orders made by the primary judge on 16 October 2023.
COSTS
Where a party has been wholly unsuccessful, as is the case in respect to the first respondent, the Court is empowered to make an order for costs pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”). In the circumstances of this case, including in circumstances where the first respondent has failed to appear in the proceedings, I am satisfied that it is appropriate to make an order for costs in favour of the appellant and the second respondent.
The Court is empowered to make an order for costs by way of various methods set out in r 12.17 of the Rules, including, pursuant to r 12.17(1)(a), an order fixing costs in a specific lump sum amount.
In determining whether it is appropriate to do, I have had regard to the summary of relevant authority set out by Kent J in the matter of Stoian & Fiening (Costs) [2014] FamCA 944 at [91]:
Commencing at [8] of his judgment Einstein J discussed the applicable principles in these terms:
- As may be expected in what is likely the largest claim ever made in this country for a gross sum costs order, both parties took the court to the authorities which inform the principled exercise of the relevant discretion. Notwithstanding that some areas of difference arose concerning disparate parameters/appropriate emphases, in terms of the application of the appropriate principles, there were in the main no areas of serious disagreement.
- For present purposes it seems convenient to commence with the recitation of the principles which inform the exercise of the discretion;
i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation” (All ER page 265)];
ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];
iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788];
iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at [22];
v. the gross sum “can only be fixed broadly having regard to the information before the Court”: Beach Petroleum at 124;
[in Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enables fixing a gross sum “only if I apply a much broader brush than would be applied on taxation, but that…is what the rule contemplates”.]
vi. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119 at 120;
vii. in terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No. 2) (1995) 57 FCR 119, put the matter as follows, at [16]:
“On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary “fail safe” discount on the cost estimates submitted to the Court: Leary v Leary at 265…”
Most relevantly, in terms of those authorities, I must be satisfied that the costs sought are “logical, fair and reasonable”.
In considering that question, in the circumstances of this case, I have had regard to the affidavit of the solicitor for the appellant sworn on 4 April 2024. Having regard to that affidavit, I am satisfied that it is logical, fair and reasonable that the first respondent be ordered to pay the costs of the appellant in the sum of $10,000 within 28 days.
While the second respondent has not filed a cost notice, the second respondent has given notice by way of their Response to the Application in a Proceeding filed on 3 October 2023, that the second respondent intended to seek costs in respect to those proceedings. I am satisfied that that notice extends to the costs incurred in my re-exercising discretion consequent to my upholding the appeal.
For the same reasons as I ordered the first respondent to pay the appellant’s costs, the first respondent should also pay the costs of the second respondent. However, those costs will be restricted to the work engaged in by the second respondent only in respect to the work associated with the Court re-exercising discretion.
Having regard to the schedule attached to the Rules and the nature of work incurred by the second respondent, in that limited respect, I am satisfied that a just and equitable amount for the second respondent’s costs in respect to that aspect of the proceedings is the amount of $2,778. That amount should also be paid within 28 days.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 16 April 2024