COLLINS & LINCOLN

In the Family Court of Australia, Ms Collins (the applicant mother) sought leave for an integral witness to give evidence by electronic means, an application opposed by Mr Lincoln (the respondent father). The dispute concerned the welfare of a child, L, and the father's opposition to the mother's application was based on the preference for the witness, who would be the child's primary caregiver if relocation were permitted, to be tested in person.

The court was required to determine whether to grant the application for the witness to give evidence electronically, despite the late stage of the proceedings and the father's opposition. A key issue was the father's submission that if the witness gave evidence electronically, he would not cross-examine, leading to the question of whether the witness's affidavit should then be disregarded. The court also considered the child's best interests in relation to the timing of the trial and the importance of the step-father's evidence.

Justice Dessau acknowledged the father's preference for in-person testimony but found his opposition weakened by the lack of an application to adjourn the trial, which the court deemed contrary to the child's best interests. The judge emphasised the imperative need for the step-father's evidence, noting its limited nature and the ample opportunity the witness had to provide more substantial material. While the father's counsel retained the discretion to cross-examine, the court ruled that the step-father's evidence would be heard electronically, despite the witness's failure to attend a face-to-face interview with the Family Report writer and the court, and the mother's unimpressive explanation for the witness's travel arrangements and notification of trial date changes. The application was allowed.