CALHOUN and VUKOJA

[2020] FCWA 165

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: CALHOUN and VUKOJA [2020] FCWA 165

CORAM: O'BRIEN J

HEARD: 17 SEPTEMBER 2020

DELIVERED : Ex tempore

FILE NO/S: PTW 25 of 2019

BETWEEN: MS CALHOUN

Applicant

AND

MS VUKOJA

Respondent

Catchwords:

JURISDICTION - Where matter listed for trial to determine whether the parties were in a de facto relationship - Where it is common ground that the parties lived together but the respondent contends that they had no more than a platonic friendship - Where neither party has any witnesses and credibility will be a critical factor - Where the applicant is in Country A and unable to personally attend trial as presently listed - Where both parties are self-represented - Notwithstanding willingness of the parties to conduct trial by telephone, the trial cannot properly proceed in that manner.

Legislation:

Emergency Management Act 2005 (WA)
Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Australian Securities and Investments Commission v Wilson [2020] FCA 873

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No. 3) (2009) 181 FCR 152

Craig v Silverbrook [2013] NSWSC 1687

Fox v Percy (2003) 214 CLR 118

Rosenberg v Percival (2001) 205 CLR 434

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 Calhoun & Vukoja has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1The financial proceedings between [Ms Calhoun] and [Ms Vukoja] are listed for a trial to commence not before 30 September 2020 with an estimated hearing time of three days.

2The proceedings were commenced by Ms Calhoun filing an application on 18 December 2018 in which she asserted that the parties had lived together in a de facto relationship from November 2006 until 13 January 2017. Ms Vukoja denies that the parties ever lived together in a de facto relationship. In particular, she vehemently denies that the parties ever engaged in a sexual relationship or shared a bed. She describes a platonic friendship in which she permitted Ms Calhoun to live in her property.

3By procedural orders made by a Registrar, the matter was listed for trial without any bifurcation, such that both the issue of jurisdiction and if jurisdiction is established the substantive application for alteration of property interests are to be determined at the one hearing.

4At an earlier stage in the proceedings, Ms Vukoja brought an application for summary dismissal, which was heard by a Magistrate on 3 July 2020. In his Reasons for Decision, his Honour set out in some detail the history of the relationship as described in the evidence of each of the parties. Understandably, his Honour concluded that it was not possible for him to determine on the papers that Ms Calhoun’s application was doomed to fail, frivolous or vexatious. The summary dismissal application was accordingly dismissed.

5Accurately, the Magistrate observed that the significant conflicts in the evidence of the parties meant that the central issue could only be determined after proper testing of the evidence at trial. Again accurately, he observed that the credibility of the parties would “very likely be critical” to the determination of the threshold issue, and that credibility could “only be properly tested in the trial setting” where the Judge would have the opportunity to “scrutinise the parties when [giving] their evidence”.

6His Honour’s accurate observations are reinforced by the subsequent development that, notwithstanding orders permitting them to do so, neither party presently proposes to call any witnesses.

7It is against that background that the present difficulty arises. Ms Calhoun is in [Country A], where she now lives. The trial is scheduled to commence in 13 days. Ms Calhoun has made no arrangements to travel to Western Australia for the trial.

8On 15 March 2020, the Minister for Emergency Services declared a state of emergency in respect of the COVID-19 pandemic pursuant to s 56 of the Emergency Management Act2005 (WA). The Commissioner of Police and State Emergency Coordinator has published directions prohibiting entry into Western Australia other than in certain circumstances (the “Quarantine (Closing the Border) Directions”).

9The directions provide that a person must not enter Western Australia unless that person is an exempt traveller. Exempt travellers are required to comply with specified terms or conditions.

10Ms Calhoun is not, simply by her status as a litigant in a listed civil trial, an exempt traveller. That said, a person who is “required to enter Western Australia under, or to give effect to, an order of an Australian court” will by definition be an exempt traveller; it would accordingly be open to me to consider making an order requiring Ms Calhoun to enter Western Australia to participate in the trial, thereby rendering her an exempt traveller.

11Even assuming she could make the necessary arrangements within the relevant time frame, that is not, of course, the end of the matter. The making of an order the effect of which is to render Ms Calhoun an exempt traveller does no more than permit her to enter Western Australia; it does not, as already noted, excuse her from complying with specified terms and conditions which are at the discretion of the Commissioner of Police or his delegate from time to time.

12It is notorious that conditions are presently imposed which require an exempt traveller entering Western Australia to enter strict quarantine for a period of 14 days, generally isolated in a hotel. It is unnecessary for me to consider whether this court has the power to make orders effectively overriding conditions which are properly imposed by the Commissioner or his delegate (although I think that unlikely) as in the present case there is simply no evidence to permit a proper consideration of any such option.

13It follows that Ms Calhoun cannot personally attend the trial as presently listed.

14I have considered whether the trial could proceed nevertheless, with Ms Calhoun giving evidence by telephone as proposed by her today. Ms Vukoja has indicated her eagerness to have the matter proceed, and her willingness to have it proceed in that manner if I considered it appropriate.

15The difficulty with that proposition is that, as already noted Ms Calhoun’s credibility is central to the matters in issue, as is the credibility of Ms Vukoja. It is entirely possible, if not likely, that the outcome of the proceedings will turn on the assessment of that credibility.

16Observations relating to the demeanour of witnesses can be a “crude and inaccurate methodology”, the defects of which “have been exposed on numerous occasions”.[1] That said, “in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties’ testimony, and the trial judge’s assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance”.[2]

[1] Craig v Silverbrook [2013] NSWSC 1687, [140].

[2] Ibid, [142]; see also Rosenberg v Percival (2001) 205 CLR 434, [41]; Fox v Percy (2003) 214 CLR 118, [23].

17The court, of course, has a discretion to permit the giving of evidence by video link or telephone or other means. The difficulties which can arise in the assessment of credibility in those circumstances have been considered in a number of cases, even prior to the exceptional circumstances which have arisen by virtue of the pandemic.

18As has been observed, the requirement to give evidence on oath or affirmation when personally present in a court room in the presence of the judge has at least three potential benefits[3]:

“it enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross examination is not thereby rendered any less effective, to the possible prejudice of the cross examining party. It provides the court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court.”

[3] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No. 3) (2009) 181 FCR 152 at [78] as cited in Australian Securities and Investments Commission v Wilson [2020] FCA 873.

19In short, in my view the trial cannot satisfactorily proceed without both parties present. That conclusion is reinforced by the fact that they are both self-represented, and that the materials filed by each to date simply confirm, with no disrespect to either, that oral evidence at trial will be critical. Those materials also give rise to a confident prediction that documents will be put to each of them at trial and tendered into evidence; it would be unrealistic to expect the parties to effectively manage that process remotely.

20The only prejudice to either party in the trial being vacated is the obvious one: they would each wish the proceedings to be concluded, and will be disappointed and frustrated at delay.

21The fundamental obligation of the court, however, is to ensure a fair trial. In the present circumstances, that cannot happen if the trial proceeds as scheduled.

22The trial will be vacated.

23For obvious reasons, it is not possible to predict when the trial might reasonably be rescheduled. The state government’s position on border closures will continue to develop over time. By the same token, Ms Calhoun may put herself in a position to seek a relisting of the trial even before travel restrictions change, if she is willing and able to comply with any conditions of entry to Western Australia including quarantine requirements and if any necessary requirements imposed by the Country A government can be satisfied.

24The appropriate course is to return the file to the docketed magistrate for monitoring, with a request that they list a monitoring hearing on a date convenient to him no earlier than two months hence.

Orders

1.The trial presently listed to commence not before 30 September 2020 is vacated.

2.The proceedings stand adjourned generally, with liberty to either party to seek a relisting before the docketed magistrate for further directions to trial.

3.Until further order of the Court, the matter be removed from the Defended List, with liberty to reinstate the matter once a trial date can sensibly be allocated.

4.Until further order of the Court, the requirement for the parties to pay the setting down fee for trial be deferred.

5.Both parties each be at liberty to attend the monitoring hearing before the presiding magistrate by telephone.

RECORD TO NOTE

(a)The file is to be returned to the docketed magistrate, with a request that he consider allocating a monitoring listing in approximately two months’ time.

(b)If appropriate, consideration could be given to a direct listing once appropriate arrangements are in hand to ensure that both parties personally attend the trial.

These reasons are the reasons for decision delivered on 17 September 2020, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

21 SEPTEMBER 2020