Bowen & Bowen (No 4)
[2023] FedCFamC1F 11
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bowen & Bowen (No 4) [2023] FedCFamC1F 11
File number(s): WOC 1194 of 2019 Judgment of: CHRISTIE J Date of judgment: 13 January 2023 Catchwords: FAMILY LAW – APPLICATION FOR ELECTRONIC COMMUNICATION – Where the second applicant applies to give evidence at final hearing via electronic means – Where the second applicant is elderly and in poor health. Legislation: Federal Circuit and Family Court of Australia Act (2021) (Cth), s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 1.06, 15.15, 15.16.
Cases cited: Wei v Xia (No 2) [2022] FedCFamC1F 189. Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 13 January 2023 Place: Sydney Counsel for the Applicants: Mr Richardson Solicitor for the Applicants: Meehans Solicitors Solicitor for the Respondent: Ms Mitchell, Hansons Lawyers ORDERS
WOC 1194 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOWEN
First Applicant
MR HUNT
Second Applicant
ESTATE OF MS HUNT
Third Applicant
AND: MR BOWEN
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
13 January 2023
THE COURT ORDERS THAT:
1.The Second Applicant be permitted to attend Court and give evidence by electronic communication from his home.
2.By no later than 12.00 pm on 18 January 2023, the respondent husband provide an electronic court book, paginated and bookmarked in PDF format, including copies of all documents which it is intended may be shown to the second applicant during cross examination.
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 pseudonym Bowen & Bowen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application to give evidence by way of electronic communication. The application is made on behalf of the second applicant, Mr Hunt. The proceedings are listed for final hearing before me commencing Wednesday, 18 January 2023. Mr Hunt is the father of the first applicant, Ms Bowen, the wife in the proceedings. Mr Bowen is the respondent husband in the proceedings.
The husband initially opposed the application for the wife’s father to attend via electronic means. The matter is listed for determination of competing final applications for property adjustment as between the husband and wife. The second applicant is a party because of his financial involvement in the development of land at C Town, registered in the name of the husband. Each of the parties have filed trial affidavits. Each of those affidavits are likely to require testing by cross-examination at the trial.
the law
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) govern the receipt of electronic evidence. Rule 15.15(1) read with r 1.06 of the Rules provide for a party attending and having their evidence received by electronic communication. Counsel for the second applicant and the solicitor for the respondent both refer to the observations of his Honour Justice Harper in Wei v Xia (No 2) [2022] FedCFamC1F 189. Rule 15.16(3) sets out in comprehensive terms what must be addressed by a party requesting permission to attend or give evidence by electronic means. Rule 15.16(6) lists, in a non‑exhaustive manner, the matters which the Court may take into account when considering a request.
consideration
Turning then to my consideration of this matter. I am satisfied there has been compliance with the formal parts of the Rules. Each party must be entitled to procedural fairness and to a mechanism by which he or she can participate. Sometimes the needs of different parties will be different. There is no evidence disputing the proposition that the second applicant is physically unwell. Since the application and supporting evidence was filed, the husband concedes that the second applicant should not be required to physically attend court. This concession effectively determines the application for electronic communication. What remains then are the circumstances in which that should occur.
The applicant says it should take place with Mr Hunt attending from his home where he has a special reclining chair. He will have the assistance of his solicitor. The respondent says the second applicant should participate from his solicitor’s office where he can more easily be shown documents. This is probably a distinction without too much of a difference.
I accept there is scant medical evidence about the chair itself but the second applicant says he spends most of his time in that chair (at [14] of his affidavit). I accept there is also little medical evidence to support a deterioration in Mr Hunt’s health but I accept that his vision has declined and there is affidavit evidence to that effect and he has surrendered his driver licence. I take into account the provisions of s 67 of the Federal Circuit and Family Court of Australia Act (2021) (Cth) and the requirement for just and efficient disposal of matters. The most significant issue in my view is the possibility that the second applicant’s ability to participate in the proceedings would be jeopardised by his travel to the solicitor’s office and the circumstances in the new location. I must balance that against a concern that the process of cross-examination will be undermined by the use of audio-visual communication.
The lawyers who act for the husband express concern in their letter of 30 November 2022 (exhibit B) that there would likely be tenders which he would now need to be cross-examined about and accordingly, in person attendance was said, at that stage, to be required. They now say the process will be enhanced by being in the solicitor’s office.
The suggestion that the second applicant could be given a specific time for his evidence ignores the fact that he is also a party entitled to be present and provide instructions for the whole of the proceedings.
It is now plain, particularly after the COVID-19 pandemic, that witnesses can effectively be asked questions about documents using electronic technology. The second applicant indicated in his affidavit that he uses a magnifying glass or magnification on his phone to read and, as I earlier said, has surrendered his driver licence.
Documents can be shown to a witness on a screen in a magnified fashion. If this is the extent of the opposition then I am satisfied we can make sensible directions designed to permit the taking of electronic evidence. If contrary to that expectation, the process is not satisfactory, no party can be prevented from raising it with the Court and the presence of Mr Richardson’s instructing solicitor at the home of the second applicant will mean the situation can be remedied promptly including, if necessary, requiring Mr Hunt to attend the Suburb T office for his evidence if an issue arises.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 13 January 2023
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