Brogden & Brogden
[2021] FamCA 642
•23 August 2021
FAMILY COURT OF AUSTRALIA
Brogden & Brogden [2021] FamCA 642
File number(s): SYC 2521 of 2019 Judgment of: HARPER J Date of judgment: 23 August 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – COVID-19 –Adjournment of final hearing – In circumstances where the State of New South Wales is in lockdown – Where children would be present whilst trial occurs electronically and mother would have to give evidence – Where possibility of a face-to-face hearing is more likely in the coming months – Where there are allegations of family violence against the father – Electronic hearing may be deficient in assessing father’s character – Matter adjourned Number of paragraphs: 9 Date of hearing: 23 August 2021 Place: Sydney Counsel for the Applicant: Mr Givney Solicitor for the Applicant: McGrath Dicembre & Company Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Rivera Legal Solicitor for the Independent Children's Lawyer: Ark Law ORDERS
SYC 2521 of 2019 BETWEEN: MS BROGDEN
Applicant
AND: MR BROGDEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
23 AUGUST 2021
THE COURT ORDERS THAT:
1.The final hearing listed to commence on 6 September 2021 be vacated.
2.The proceedings be adjourned to 17 January 2022 for final hearing, with an estimated hearing time of 5 days.
3.Leave be granted to the parties to file and serve any further affidavit material updating their consolidated trial affidavits by no later than close of registry filing on 17 December 2021.
4.By no later than 7 January 2022, the parties confer with the ICL for the purpose of agreeing a process to provide the single expert witness, Dr J, with any further material that the parties and ICL wish Dr J to consider prior to the hearing commencing on 17 January 2022.
5.The parties confer and submit to my chambers an agreed trial plan by no later than close of registry filing on 13 January 2022.
6.Leave be granted for the parties to issue up to two further subpoenas each.
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 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brogden & Brogden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J
These proceedings are currently listed for final hearing commencing on 6 September 2021, with an estimated hearing time of five days. The parties have undertaken preparation for the final hearing, however, by reason of the COVID-19 pandemic, the court has raised with the parties the difficulties of conducting the trial appropriately via Microsoft Teams.
The father’s position is that he has not seen the children for a considerable period of time, and that any further delay in having a hearing might seriously affect his mental health.
The realities of the situation, however, are that the children presently live with the mother and that any trial conducted electronically would require her to participate in the hearing, including as a witness giving evidence, in a home where the children are present all day by reason of the NSW Government’s lockdown orders. These orders are preventing people from moving freely around Sydney and, in particular, constraining the circumstances in which children attend school in the ordinary fashion.
The oldest child is now 14 years old. The Independent Children's Lawyer (“ICL”) has informed the court that the children have expressed clear views. Those views appear to be the same, although the ICL was proposing to have further contact with the children prior to the commencement of the hearing on 6 September 2021.
This is a very difficult decision. I have taken account of the fact that the expert report of Dr J is now over a year old, and there would need to be some updating undertaken in respect of that prior to the current listing on 6 September 2021, and obviously prior to any later adjourned date.
The ICL is of the view that it would not be in the children's best interests for a trial to be conducted in circumstances where they are present at all times at the same location where the mother is participating as a party and a witness.
The father has made persuasive submissions seeking to maintain the hearing date on 6 September 2021. However, I am persuaded on balance that it is preferable to vacate the hearing in September 2021 and allocate fresh hearing dates in January of 2022. This is because by that time, all the indications are that it is likely NSW will be out of lockdown by reason of its’ population achieving a higher level of vaccination, and the possibility of a face-to-face hearing taking place will be much greater.
In that regard, I have given careful consideration to one issue in the proceedings, which are allegations concerning the father's propensity for violence. If those allegations have been made and pressed, it would be necessary for me to form a view about the father as a witness. It seems to me that it would be fairer to him if that process was undertaken in a face-to-face trial, as opposed to leaving him at the mercy of the deficiencies of an electronic hearing.
For those reasons and, on balance, recognising the difficulty of the decision, I vacate the final hearing listed to commence on 6 September 2021. I adjourn the proceedings to 17 January 2022 for final hearing with an estimated hearing time of five days.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 23 August 2021. Associate:
Dated: 9 September 2021
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