BANIK and TAK BANIK
[2022] FCWA 59
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BANIK and TAK BANIK [2022] FCWA 59
CORAM: DUNCANSON J
HEARD: 14 MARCH 2022
DELIVERED : 17 MARCH 2022
FILE NO/S: [Redacted]
BETWEEN: MR BANIK
Applicant
AND
MS TAK BANIK
Respondent
Catchwords:
PRACTICE AND PROCEDURE - applications by mother to attend trial electronically - to extend time for filing trial documents and to tender a report from an expert witness
Legislation:
Family Law Act 1975 (Cth) s 69ZN, s 69ZQ
Family Court Rules 2021 (WA) Div 5, r 81, r 268, r 269, r 276, r 277
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.10.1
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms A |
| Respondent | : | Ms B |
| Indpendent Children's Lawyer | : | Mr C |
Solicitors:
| Applicant | : | Law Firm A |
| Respondent | : | Law Firm B |
| Indpendent Children's Lawyer | : | Law Firm C |
Case(s) referred to in decision(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Banik and Tak Banik has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1The mother, [Ms Tak Banik] and the father, [Mr Banik], are parties to proceedings concerning their child, [Child A], who is almost nine years of age. A four-day trial is listed before me to commence in June 2022.
2The mother filed three applications in a case. The father seeks dismissal of these applications and seeks an order that he have leave to proceed to trial on an undefended basis. He also seeks costs.
APPLICATION FOR ELECTRONIC ATTENDANCE
3In the mother's application filed 31 December 2021, she seeks orders as follows:
•Paragraph 4 of orders dated 11 June 2021 and paragraph 1 of orders 23 September 2021 be discharged and she be permitted to attend the trial via electronic means; and
•If either or both of her parents file an affidavit for trial, they be permitted to attend the trial via electronic means.
4The mother's orders sought are confusing because paragraph 4 of the orders dated 11 June 2021 and paragraph 1 of the orders dated 23 September 2021 relate to the mother’s travel to Perth with Child A to attend upon the single expert witness.
5It seems to me that the relevant orders are those of O'Brien J dated 2 December 2021 where his Honour ordered at paragraphs 12 ‑ 14 that, subject to any contrary direction of the Trial Judge, the parties must personally attend trial, and any party seeking to vary that order, or seeking leave to give evidence by video link or other electronic means, must file and serve the relevant application 14 days after the allocation of the trial date.
6The mother's evidence in support of her application is contained in her affidavit dated 31 December 2021. She deposed she lives in fear that the father will take her life, and the basis of her fear is the many threats he made to kill her in the event she left the relationship. She deposed the father has also made threats to her parents. She says if she and her parents can appear by electronic means, then she can keep her whereabouts hidden and guarantee her safety.
7The father vehemently denies allegations that he would harm the mother or Child A. In his affidavit affirmed 10 March 2022, he referred to safety precautions which could be put in place at trial.
8Counsel for the father submitted that the mother had previously consented to orders on two occasions to come to Perth, and while the first consent had been given before the mother’s [relative] was tragically killed, the second consent was after that had happened. The father deposed the mother has shown a disrespect to the Court by failing to comply with orders to which she agreed, and deposed she is well aware of her duty to attend trial in person.
9Counsel further submitted that the mother has no third-party evidence as to her genuine fear, and that given the personal safety protections the Court can put in place, she should come to Perth to give her evidence.
10As to the attendance of the mother's parents, the husband says they would require an interpreter, and that communication via audio link would create difficulty in cross-examination. He says his case would be prejudiced if this were to happen.
11The independent children's lawyer [Mr C] ("the ICL") did not oppose this application. He said he was not comfortable about it because he had no experience of cross-examining by video link.
12The mother's application to attend by electronic means is made pursuant to r 81 of the Family Court Rules 2021 (WA). Rule 81(1) provides as follows:
81. Attendance by electronic communication
(1)A party may request permission to do any of the following things by electronic communication at a hearing -
(a)attend;
(b)make a submission;
(c)give evidence;
(d)adduce evidence from a witness.
13Rule 81(5) sets out the matters which the court may take into account when considering a request to attend by electronic communication and provides as follows:
(5)The court may take the following matters into account when considering a request —
(a)the distance between the party’s residence and the place where the court is to sit;
(b)any difficulty the party has in attending because of illness or disability;
(c)the expense associated with attending;
(d)the expense to be incurred, or the savings to be made, by using the electronic communication;
(e)any concerns about security, including family violence and intimidation;
(f)whether any other party objects to the request.
14Rule 81(5)(e) is relevant in the circumstances of this case as it deals with any concerns about security, including family violence and intimidation. That is the basis of the mother's application.
15Section 69ZN of the Family Law Act 1975 (Cth) contains the principles for conducting child-related proceedings. The second principle is that the court is to actively direct, control and manage the conduct of the proceedings. Most relevantly however, principle 3 provides:
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)the parties to the proceedings against family violence.
16Finally, s 69ZQ sets out the general duties relating to giving effect to the principles and s 69ZQ(1)(e) provides that the court must make appropriate use of technology.
17I intend to grant the mother's application, and to permit her and her parents to attend the trial by electronic means.
18I intend to do so for the following reasons:
•Although the evidence has not been tested and I make no finding at this interim stage as to the mother’s allegations against the father and whether he poses a risk of harm to her, her evidence is she fears that the father will kill her. The mother’s counsel submitted that the mother is highly traumatised, she has a genuine fear for her life and is very fearful of travelling to Perth. The mother deposed the murder of her [relative] by the [relative's spouse] [in] 2021 has caused the mother and her parents to suffer grief and trauma. These are very serious circumstances.
•The father vehemently denies he poses a risk of harm to the mother or Child A. He asserts she is looking for any excuse to justify her blatant disregard of the orders and to delay the proceedings in order to assist her case at the final hearing.
•I am mindful the father has not spent time or had any communication with Child A since February 2021. The father's psychologist, [Ms D] affirmed an affidavit on 7 January 2022 annexing a report. Ms D's report explains the impact on the father of not having contact with Child A, and has a number of concerning comments, including the reference to the recent death of the father's mother appearing to have "tipped him over the edge". Similarly, Ms D reported the father said that he "has nothing to live for", is at "the lowest he has ever been" and feels he "can't hold on any longer". While I do not connect these issues for the father to the mother's fear, they add to the serious concerns raised and are matters which I have taken into account.
•I am not persuaded that cross-examination of the mother requires to take place in the conventional setting of the court room. My experience is that the ability to assess a witness is not diminished by electronic attendance. In fact, I have found it is often easier to observe a witness closely on a screen rather than from a distance in the witness box.
•I consider it is likely that the mother will give her evidence more freely and that she may be more forthcoming if she is not intimidated by a personal attendance in close proximity to the father. It is likely the mother is vulnerable, and I consider she will probably participate more effectively in the proceedings if she does so from a distance.
•Throughout the course of the COVID-19 pandemic, electronic attendance at hearings is being used increasingly out of necessity. Those hearings have included books of documents being prepared in advance and the attendance of interpreters. Although on occasions, there have been some electronic difficulties, they have been manageable and have not obstructed the course of the hearing.
•I consider applications such as this should be considered on a case-by-case basis, taking into account the nature of the hearing, the issues raised and the importance to the parties.
•In the circumstances of this case and on balance, I am not persuaded that there is prejudice to the father such that to grant the application would not be in the interests of the administration of justice.
APPLICATION FOR EXTENSION OF TIME
19In the mother's application filed 2 February 2022, she seeks orders that paragraph 2 of the orders dated 2 December 2021 be varied so the time for her to file her trial documentation be extended to 12 April 2022.
20The mother's evidence in support of her application is contained in her affidavit dated 1 February 2022. She deposed she has been unable to complete her documentation within the timeframe for a number of reasons, including her ongoing severe trauma, the arrival of her parents in Australia, and managing their overwhelming grief and concerns about safety.
21Counsel for the mother also referred to dealing with witnesses in [Country A] who require an interpreter and said there have been difficulties in trying to get the evidence of these witnesses.
22The father seeks dismissal of this application and he seeks leave to proceed on an undefended basis. He does not accept there is a reason for the delay in the filing of the mother's documents and deposed she was fully aware of the timeframe in which she had to file her material and consented to the orders dated 2 December 2021.
23The ICL did not oppose the mother's application. He said however if the mother's documents are not lodged by 12 April 2022 the father should have leave to proceed undefended.
24I intend to grant the mother's application and permit her further time to file her trial documents, and affidavits of her witnesses. The proceedings concern the best interests of this young child and they raise some very serious issues. These issues are best determined with both parties fully participating in the trial. I refuse the order sought by the father for permission to proceed on an undefended basis.
APPLICATION TO RELY ON EXPERT REPORT
25In the mother's application filed 1 March 2022, she seeks an order that she be at liberty to produce an expert report from [Ms E] for the purpose of the trial. The evidence in support of this application is contained in an affidavit of the mother's solicitor, [Ms B], dated 28 February 2022.
26Ms B deposed the expert report is being sought in relation to Country A/[Region A] culture, as it relates to domestic violence and honour killings in Country A and specifically in Region A. She deposed it is her view that this matter is steeped in cultural beliefs and they are relevant to the mother's beliefs and her state of mind.
27Ms B deposed it is not intended to use this report as intention evidence against the father or to make submissions about his behaviour.
28Counsel for the mother submitted the purpose of the report would be to understand the context of the mother's fears and give the Court assistance in whether or not the mother's fear is reasonable given some of the cultural context of the case.
29The father opposes this application. He considers the only purpose of seeking to adduce such evidence is to support the mother's allegation that he is a risk to her or Child A, which he vehemently denies.
30Counsel for the father referred to the terms of reference proposed to be provided to Ms E and submitted that paragraph 1(f) should not be included in the terms of reference. Counsel for the mother agreed to this.
31The ICL also opposed this application and said he could not see how a report could assist the Court in making a decision in this matter based on the best interests of the child and he said there was nothing in the terms of reference that could help the Court.
32In seeking to rely on expert evidence, the mother erroneously referred to "rule 7.10.1 of the Family Court Rules 2021". In fact, r 7.10.1 is contained in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The father's reference at paragraph 57 of his affidavit to the Family Law Rules (2021) is also incorrect. The applicable rules are the Family Court Rules 2021 (WA).
33Rule 269 provides that if the parties agree that expert evidence may help to resolve a substantial issue in a case, they may agree to jointly appoint a single expert witness. That is not what has occurred in this case.
34The mother's application is made pursuant to r 276 and I shall treat it as such. Rule 276 (1) provides that a party must apply for the court's permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.
35Rule 277 (3) sets out the matters the court may take into account when considering whether to permit a party to adduce evidence from an expert witness. It provides:
…
(3)When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account -
(a) the purpose of this Division; and
(b) the impact of the appointment of an expert witness on the costs of the case; and
(c) the likelihood of the appointment expediting or delaying the case; and
(d) the complexity of the issues in the case; and
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by 1 party only; and
(f) whether the expert witness has specialised knowledge, based on the person’s training, study or experience —
(i)relevant to the issue on which evidence is to be given; and
(ii)appropriate to the value, complexity and importance of the case.
36I am mindful of the purpose of Division 5 as set out in r 268. There is no evidence before me as to the impact on the costs of the case. It is unlikely that this appointment alone will expedite or delay the case. As discussed below, four days may not be sufficient time to conclude this case with or without the expert. There are complex issues in the case involving the mother's fear for her life and trauma caused by events in Country A. It was not suggested by the father or the ICL that a single expert witness should be appointed.
37Counsel for the mother submitted Ms E is an expert with respect to domestic violence, and the cultural and religious factors that may contribute to it, and she has specialised knowledge, particularly in relation to migrants from Region A.
38Ms E's curriculum vitae is annexed to the affidavit of Ms B. Ms E is a [social worker] with a professional career spanning [many] years. She has been involved in [family violence related projects including with respect to women from Country A] and the [Country A community]. She is fluent in [Region A language] (working level).
39Ms E's research publications include those with respect to various aspects of culturally and linguistically diverse communities, children and families. In 2019, Ms E commenced a PhD at [University A]. Her current research topic for her PhD is examining [relevant family violence issues within Country A].
40Counsel for the father noted that Ms E has worked with other minority groups, including Indigenous communities. Counsel submitted that the meaning of a "working level" of Region A language is not known and questioned how familiar Ms E is with the particular issues. Counsel also submitted that Ms E is not very far into her PhD.
41An issue for determination is likely to be whether the mother's belief that the father will kill her and her fear for her life are genuinely held. I consider that the Trial Judge will be assisted in the determination of this issue by evidence from Ms E. Ms E has specialised knowledge based on her training, study and experience which is relevant to the issue upon which evidence is to be given and appropriate to the value, complexity and importance of this case.
42I shall grant the mother's application and permit her to tender a report from Ms E at the trial. The report is to address the terms of reference provided by the mother at items 1(a) to (e) or as otherwise agreed. I shall hear from counsel and the ICL as to what, if any, documents are to be provided to Ms E and they will be required to confer in this respect.
OTHER RELEVANT MATTERS
43These proceedings have been listed for trial to commence with a fixed date on 7 June 2022. The trial was direct listed with an estimated hearing time of four days.
44Pursuant to my orders the mother and her parents will attend the trial electronically. The mother's counsel advised the Court that the mother has three witnesses based in Country A. The witnesses and the mother's parents will require interpreters.
45Expert evidence is to be provided by Ms E, who may be required for cross-examination.
46The father will attend in person. His witnesses include his daughter from a previous relationship and his psychologist.
47All counsel agreed it was highly unlikely that the trial will be concluded in four days. Once the mother files her trial material by 12 April 2022, counsel will reassess the matter and provide a more realistic estimated hearing time. The trial may have to be re-listed to ensure its' completion without being part-heard.
IT IS ORDERED THAT:-
1The Respondent, [MS TAK BANIK] and her witnesses have permission to attend the trial by video link or other electronic means.
2The time within which the Respondent file her trial documents pursuant paragraph 2 of the orders dated 2 December 2021 be extended to close of Registry 12 April 2022.
3The Respondent have permission to tender a report at trial from [Ms E]. The parties shall confer as to the terms of reference and failing agreement those terms of reference shall be as set out in order 4 below:
4[Ms E], [Social Worker], of [Service A], be given leave to enquire into and report on the following:
(a)your views about whether there are aspects of the [Country A]/[Region A] culture which render women more susceptible to domestic and family violence;
(b)if so, in your knowledge and experience, does this culture continue when [Region A] families migrate to Australia;
(c)can you comment on how women who divorce their husbands are perceived in [Region A] of [Country A];
(d)what are some common cultural repercussions of a woman divorcing her husband in the [Region A] of [Country A]; and
(e)are "honour killings" still prevalent in [Country A] and if so, what is your understanding of the cultural basis for such killings.
5Within 7 days the parties shall file a joint minute setting out the terms of reference to [Ms E] following their conferral.
6Within 7 days the mother shall provide disclosure of all communications between her and [Ms E] between her legal representatives and [Ms E].
7The Form 2 applications filed by the Respondent on 31 December 2021, 2 February 2022 and 1 March 2022, and the Form 2A response filed by the Applicant on 11 March 2022 be otherwise dismissed.
8The proceedings be listed for a Status Hearing on 19 April 2022 at 10.00 am in the Duty Judge List.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
SI
Associate
7 JULY 2022
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