BOCCA & MARTENS

[2016] FamCA 1074

FAMILY COURT OF AUSTRALIA

BOCCA & MARTENS [2016] FamCA 1074

FAMILY LAW – PROPERTY - Application for a review of a Registrars decision declining witnesses to give evidence by video-link – Application successful

FAMILY LAW – PRACTICE AND PROCEDURE – Orders and directions made in relation to the filing of documents – Orders and directions made in relation to evidence of witnesses

Family Law Act 1975 (Cth) s 102

APPLICANT: Mr Bocca

RESPONDENT: Mr Martens

FILE NUMBER: SYC 6963 of 2015

DATE DELIVERED: 15 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 15 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Winfield

SOLICITOR FOR THE APPLICANT: Eleanor Murphy & Co

COUNSEL FOR THE RESPONDENT: Ms Kennedy

SOLICITOR FOR THE RESPONDENT: Tiyce Partners Lawyers

Orders

1. Leave be given for Mr F and Mr E to give evidence by video-link from China.

IT IS DIRECTED

1. The applicant have available technology in the Court, with a large screen, to enable such video evidence to occur and to provide details of that technology to the other party within fourteen (14) days of the date of this order.

2. The parties shall have available a tender book with the documents contained in them, page numbered and indexed and provide four (4) copies, one for each of the parties’ legal representatives, one for the witness and a spare copy for the Court, and have such bundle document available in electronic form on a USB.

3. A copy of the reasons for these orders be taken out and placed onto the Court file.

4. A legal practitioner with a practicing certificate in China be available in the place where the evidence is to be given to certify that there was no one else present and that the witnesses are not in any coached or assisted.

IT IS ORDERED

1. The costs of any parties be reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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 Bocca & Martens 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).

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FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6963 of 2015

Mr Bocca

Applicant

And

Mr Martens

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for a review of a decision by a Registrar permitting Mr F and Mr E to give evidence in accordance with their affidavits sworn 3 August 2016 and filed 8 August 2016. 

2. The proceedings to which these apply are proceedings under the Family Law Act1975 (Cth) (‘the Act’) to gain jurisdiction, that is, to make a finding whether Mr Martens (‘the applicant’) and Mr Bocca’s (‘the respondent’) relationship was or was not a de facto relationship within the meaning of the Act. It appears that this evidence is required to support the applicant’s assertion of the existence of a de facto relationship.

BACKGROUND AND PROCEEDINGS

1. The applicant and respondent began a friendship/relationship in November 2000, which continued until October 2013. 

2. The applicant is aged 46, the respondent is aged 58.  The parties met in 2000. The parties have a complex and at times a disputed factual background.

3. There is no issue that the parties are not and were not married to each other and that they are not related by family.

4. The applicant asserts that after the parties met in 2000 they began a routine of him staying at the respondent’s home overnight every weekend and at least once or twice midweek.  He says this routine continued for the next 13 years.  In addition says that the parties saw one another three or four times a week, but not overnight.  He says that they undertook all of the domestic chores together at the respondent’s apartment. 

5. The respondent asserts that after their meeting in 2001 they became friends, and this friendship continued for a period of about 13 years.  However, he denies that they ever lived together in a de facto relationship. 

6. The applicant commenced proceedings in the Family Court on the 23 October 2016 seeking property orders based upon the asserted 13 year de facto relationship. 

7. The respondent filed a response to an initiating application and an application in a case on the 27 November 2015 raising the question of jurisdiction and seeking a declaration pursuant to s 90RD(1) of the Act that a de facto relationship never existed between the parties. He also filed an application in a case at the same time seeking that same order.

8. The applicant filed a response to the respondent’s Application in a case on the 3 March 2016 seeking a declaration that a de facto relationship existed between the parties in the same terms as his application.

9. The matter is listed for hearing later in the year.

10. The applicant’s request to attend by electronic communication was initially filed on 28 July 2016.  An order was made by a Registrar of this Court on 8 August 2016 and that has now come before me by way of a re-hearing.  The objections to the leave sought or permission sought fall into two areas:  firstly, that there is no clear definition of how that is going to be delivered and, secondly, that it would be unfair or unjust in terms of assessing credit if the witnesses were here in person.

11. The respondent to the application in a case filed written terms of which I have read and had regard setting out some of the law in relation to this particular mode of giving evidence.  Things have changed since 1999 in terms of how material can be provided in an electronic form.  In fact, we are a world of difference from that time.  Litigation in this Court is problematic having regard to the cost and the convenience of parties and witnesses. 

THE LAW

1. Section 102 was inserted into Act in 2003 and provides for judges to exercise their discretion in that respect, as his Honour Le Poer Trench J set out in Jackson & Balen [2011] FamCA 519..

2. Part X1, Division 2 of the Act sets out the circumstances in which it is appropriate to give testimony, make appearances and give submissions via video link, audio link or other appropriate means. Section 102 of the Act provides:-

   102C TESTIMONY

   (1)The court or a Judge may, for the purposes of any proceedings, direct or allow testimony to be given by video link, audio link or other appropriate means.

   Note: See also section 102F.

   (2)The testimony must be given on oath or affirmation unless:

   (a)the person giving the testimony is in a foreign country; and

   (b)either:

   (i)the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceedings; or

   (ii)the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceedings; and

   (c)the court or a Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

   (3)If the testimony is given otherwise than on oath or affirmation, the court or a Judge must give the testimony such weight as the court or the Judge thinks fit in the circumstances.

   (4)The power conferred on the court or a Judge by subsection (1) may be exercised:

   (a)on the application of a party to the proceedings concerned; or

   (b)on the court’s own initiative or on the Judge’s own initiative, as the case may be.

   (5)This section applies whether the person giving testimony is in or outside Australia, but does not allow testimony to be given by a person who is in New Zealand.

   Note: See Part 6 of the Trans‑Tasman Proceedings Act 2010.
   102D APPEARANCE OF PERSONS

   (1) The court or a Judge may, for the purposes of any proceedings, direct or allow a person to appear before the court or the Judge by way of video link, audio link or other appropriate means.

   Note: See also section 102F.

   (2)The power conferred on the court or a Judge by subsection (1) may be exercised:

   (a)on the application of a party to the proceedings concerned; or

   (b)on the court’s own initiative or on the Judge’s own initiative, as the case may be.

   (3)This section applies whether the person appearing is in or outside Australia, but does not apply if the person appearing is in New Zealand.

   Note: See Part 6 of the Trans‑Tasman Proceedings Act 2010.
   102E Making of submissions

   (1)The court or a Judge may, for the purposes of any proceedings, direct or allow a person to make a submission to the court or the Judge by way of video link, audio link or other appropriate means.

   Note: See also section 102F.

   (2)The power conferred on the court or a Judge by subsection (1) may be exercised:

   (a)on the application of a party to the proceedings concerned; or

   (b)on the court’s own initiative or on the Judge’s own initiative, as the case may be.

   (3)This section applies whether the person making the submission is in or outside Australia, but does not apply if the person making the submission is in New Zealand.

   Note: See Part 6 of the Trans‑Tasman Proceedings Act 2010.
   102F  Conditions for use of links
   Video link

   (1) The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to a video link unless the court or the Judge is satisfied that the following conditions are met in relation to the video link:

   (a) the courtroom is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom to see and hear the person (the remote person) who is:

   (i)giving the testimony; or

   (ii)appearing; or

   (iii)making the submission;

   as the case may be, by way of the video link;

   (b)the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom;

   (c)such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the video link;

   (d)such other conditions (if any) as are imposed by the court or a Judge.

   (2)The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

   (a)the form of the video link; and

   (b)the equipment, or class of equipment, used to establish the link; and

   (c)the layout of cameras; and

   (d)the standard of transmission; and

   (e)the speed of transmission; and

   (f)the quality of communication.

   Audio link

   (3)The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to an audio link unless the court or a Judge is satisfied that the following conditions are met in relation to the audio link:

   (a)the courtroom is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom to hear the person (the remote person) who is:

   (i)giving the testimony; or

   (ii)appearing; or

   (iii)making the submission;

   as the case may be, by way of the audio link;

   (b)the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the court or the Judge is sitting;

   (c)such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the audio link;

   (d)such other conditions (if any) as are imposed by the court or a Judge.

   (4)The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (3)(c) include conditions relating to:

   (a)the form of the audio link; and

   (b)the equipment, or class of equipment, used to establish the audio link; and

   (c)the standard of transmission; and

   (d)the speed of transmission; and

   (e)the quality of communication.

   Other appropriate means

   (5)The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to appropriate means other than video link or audio link unless the court or the Judge is satisfied that the following conditions are met in relation to that means:

   (a)the conditions (if any) as are prescribed by the applicable Rules of Court in relation to that other appropriate means;

   (b)such other conditions (if any) as are imposed by the court or the Judge.

   Eligible persons

   (6)For the purposes of the application of this section to particular proceedings, eligible persons are such persons as the court or the Judge considers should be treated as eligible persons for the purposes of the proceedings.

   Meaning of courtroom

   (7)In this section:

   courtroom means:

   (a)in relation to a Judge or a court that is not a split court—the courtroom or other place where the Judge or court is sitting; or

   (b)in relation to a split court—each of the courtrooms or places where the Judges of the split court are sitting.

   102G PUTTING DOCUMENTS TO A PERSON

   (1)This section applies if, in the course of an examination or appearance of a person by video link, audio link or other appropriate means in accordance with this Division, it is necessary to put a document to the person.

   (2) A court (that is not a split court) or a Judge may direct or allow the document to be put to the person:

   (a)if the document is physically present in the courtroom or other place where the court or the Judge is sitting:

   (i)by causing a copy of the document to be transmitted to the place where the person is located; and

   (ii)by causing the transmitted copy to be put to the person; or

   (b)if the document is physically present in the place where the person is located:

   (i)by causing the document to be put to the person; and

   (ii)by causing a copy of the document to be transmitted to the courtroom or other place where the court or the Judge is sitting.

   (3)A split court may direct or allow the document to be put to the person:

   (a)if the document is physically present in a courtroom or other place where a Judge of the split court is sitting:

   (i)by causing a copy of the document to be transmitted to the place where the person is located; and

   (ii)by causing the transmitted copy to be put to the person; or

   (b)if the document is physically present in the place where the person is located:

   (i)by causing the document to be put to the person; and

   (ii)by causing a copy of the document to be transmitted to each of the courtrooms or other places where the Judges of the split court are sitting.

DISCUSSION AND CONCLUSION

1. I see no reason on the material before me for requiring these witnesses to travel from China to Australia for the purpose of giving evidence, bearing in mind that video evidence and the making of video submissions are commonplace in this Court.

2. In terms of the nature of the way it can be given, that will be organised by the persons or the parties seeking to give the evidence in that way.  I anticipate that will be given by way of a video screen in the Court in the witness box, which is viewable by not just myself, but by the parties and those who represent them.  It will be a large screen and this can be either by Facetime or Skype or something similar to that.  I will require a solicitor to be present in China to certify that the parties are by themselves and that there is no one there coaching or advising them.  I will be requiring each of the parties to have available for the Court a tender bundle, both in a hard and an electronic copy.  That document is to be paginated.

3. I remind those who instruct their staff to prepare this material that most modern photocopy machines nowadays have a pagination device built into them, and so I would be horrified if I saw some poor soul having to sit down and paginate two or three hundred pages when it can be easily done on a photocopy machine.  I would expect five copies of those: one for the Court, one for each of the parties, one for the witness box and one for me to write upon.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 August 2016.

Associate:     

Date:              15 December 2016