COLLINS & LINCOLN

[2013] FamCA 48

FAMILY COURT OF AUSTRALIA

COLLINS & LINCOLN [2013] FamCA 48

FAMILY LAW – PRACTICE AND PROCEDURE – Application for witness to be heard by electronic means - Allowed

APPLICANT: Ms Collins

RESPONDENT: Mr Lincoln

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8507 of 2011

DATE DELIVERED: 19 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 19 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thompson

SOLICITOR FOR THE APPLICANT: Pana Dokos

COUNSEL FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE RESPONDENT: MacGregor Solicitors

IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Lincoln has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8507 of 2011

Ms Collins

Applicant

And

Mr Lincoln

Respondent

REASONS FOR JUDGMENT

1. This is an application made extremely late in the piece by the mother for an integral witness to give evidence by electronic means. 

2. It is opposed by counsel for the father.  It is very difficult to understand the father’s position except for the obvious one, which is it would be preferable for this witness to be here, that is it is better for a person who is so important - the person with whom L, (“the child”) would be living if the relocation is permitted - to be properly tested and for the Court to have the ability to see that witness.

3. I am sympathetic to those submissions but I must say, the position on behalf of the father falls away fairly dramatically after that, when it is put to me that there is no application at all to put the trial off.  I do agree it would not be in the child’s best interests to put the trial off.  However, what is put by counsel for the father is that this witness, so integral to the child if he relocates, is not one that the father would cross-examine if it is only possible by electronic means.  Accordingly, he submits then there should no longer be an affidavit by him.

4. In my position as the trier of fact, and the one who must determine the child’s best interests, it is imperative for me that the step-father’s evidence is before the Court.  I note that it is extremely limited material.  I do not say that so that an application is simply made to beef it up, as it were, when he starts to give evidence, if that is what occurs.  I note it because I am conscious that he has had ample opportunity to do that. 

5. It will be up to Mr Thompson for the father as to whether or not he cross-examines the step-father.  That is entirely up to him, but the material should remain before the Court.

6. It will also be open to Mr Thompson, quite reasonably, to bring out why it is that this man was in Australia for the lengthy period from 16 December 2012 to 9 February 2013, and he missed the face to face interview with the Family Report writer, and he has missed the face to face evidence in Court.

7. I will note right now as to any submissions on behalf of the mother that he had arranged his trip to Australia, and was subsequently notified that the trial date had been moved, from 4 February to 19 February 2013, I see from Court correspondence, that he was informed as long ago as 19 October 2012.  So it is overall unimpressive but I am going to allow the application to hear his evidence by electronic means.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 19 February 2013.

Associate: 

Date:  19 February 2013