[2019] FamCA 1011

FAMILY LAW - PROPERTY - where hearing has been prolonged - where husband is upset - where counsel for husband says husband is unfit to give evidence today - where court assesses husband as distressed and accepts that he may not do himself justice if required to be cross examined further - adjournment.

1. The time for compliance by Mr HH with the subpoena bearing the filing date 11 November 2019 (which is obviously wrong) be and is hereby extended to 10.00 am on Wednesday 4 December 2019.
2. I reserve liberty to any party to the proceedings and to the recipient to the subpoena to apply to object to the subpoena and/or for the purpose of limiting the documents to be produced on subpoena.
3. The solicitors for the wife be responsible for serving a sealed copy of this Order on Mr HH by electronic means as soon as practicable.
4. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
5. This matter be otherwise adjourned to a date to be fixed and notified to the parties in writing.

Note: The form of the order is subject to the entry of the order in the Court's records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowles & Fowles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Note: This copy of the Court's Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

1. This matter was listed for the 25th day of trial today, when the husband was to resume being cross-examined by Mr Sheales for the wife in what I calculate is approximately the 15th day of his cross-examination. From quite early in the day the husband attended Court and was visibly upset. He was of very high colour; he was sobbing; and appeared to be in a reasonably high state of anguish sitting in Court behind senior counsel and junior counsel. The matter was then stood down.
2. At one point the husband was left alone in Court without his representatives for what I am told is two or three minutes, but certainly it came to my attention through my Court staff that they were concerned about the husband's wellbeing, and sufficiently so to ask the Court administration to send someone to sit with the husband. Mr Salamanca, junior counsel for the husband, has explained to me that leaving the husband alone in Court was done in order for the husband to, in Mr Salamanca's view, better able to compose himself. Whilst that is not an appropriate use of Court space, it does indicate to me that Mr Salamanca assessed the husband as being in a high state of anxiety.
3. Mr North, in the course of the morning, made an oral application for leave to make two applications. First, that the proceedings today be adjourned and, secondly, that the cross-examination be determined, by which I take to mean that there be an order that the husband not be further cross-examined in these proceedings. I have not ruled on either application for leave to make an oral application in those terms, and indeed I now do not have to because Mr North has withdrawn the oral application. It is fair to say, however, that I would have been reluctant to entertain an application precluding further cross-examination of the husband based on an oral application and without any supporting material, expert or otherwise.
4. The husband is an unusual personality, and it is not the first time that he has come into Court and cried and sobbed and appeared to be in a high state of anxiety. I also observe that he has had an uneven gait this week. He seems to have a limp; however, this morning he seemed unable to walk even six feet or so without being supported. That is certainly a deterioration from yesterday and the day before. These proceedings were allocated four days this week, and it was to be the last four days of the entire case, that is, the evidence was to be completed and I was hoping submissions would be completed. But that has not come to fruition and, quite frankly, whilst the cross-examination of the husband has been long and at times may have appeared to lack direction, I would not make that assessment at this point without knowing the entire story, and it does appear at this time I do not know the entire story.
5. An adjournment of this matter today will mean that we lose one day in Court, but it is a matter that has occupied far too many days already so I do not think that that makes a great deal of difference. My assessment of the husband is that he is struggling. He does not appear to be in control of what he does at all times. Mr North and Mr Salamanca have a great deal of experience as counsel and also as counsel in this Court. If it is their assessment, as I hear it is, that the husband would not be doing his case justice and is not fit to proceed today, I place considerable store in that. They would not say that lightly. They say it pursuant to their duty to the Court as officers of the Court, to ensure that proceedings are dealt with regularly and fairly, in short, that the integrity of the proceedings is maintained.
6. I am not aware, and I have not been told, whether he has received any form of treatment or medical assistance since he has been at Court today. If I did continue the matter today, given what I have personally observed, I must face the possibility that the hearing might exacerbate a condition about which I do not have details at the moment, to an extent that might limit the husband's ability to give evidence in the future. I do not want to make matters any worse.
7. So, in these circumstances I will not hear any further evidence from him today, and I will adjourn the proceedings after I have determined any other outstanding issues that either counsel think should be determined, or could be determined today.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 November 2019.