Conan & Mott
[2023] FedCFamC2F 130
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Conan & Mott [2023] FedCFamC2F 130
File number(s): MLC 10140 of 2019 Judgment of: JUDGE O'SHANNESSY Date of judgment: 14 February 2023 Catchwords: FAMILY LAW – interim orders – application to appear electronically at a final hearing being heard in person – party is currently living interstate – application to appear electronically is opposed – application opposed because of credit issues – application allowed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court Rules (Family Law) Rules 2021 (Cth) r 15.16
Division: Division 2 Family Law Number of paragraphs: 8 Date of hearing: 31 January 2023 Place: Melbourne Solicitor for the Applicant: Fair Family Law Solicitor for the Respondent: RRR Lawyers Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers ORDERS
MLC 10140 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MOTT
Applicant
AND: MR CONAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
14 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The matter remains listed for final hearing on 9 February 2023 (for an estimated 2 days)
2.The Applicant Father is permitted to attend the final hearing electronically via Microsoft Teams.
AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym Conan & Mott has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of an oral judgment delivered ex tempore. These settled reasons have been corrected from the transcript to correct grammatical errors, add citations and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
This parenting matter comes before me as a matter of urgency with a final hearing listed over two days over 9 February 2023. The Father is the Applicant and seeks to spend time with the child. The Father has not spent time with the child for some time. I am informed from the bar table that he has resided in Queensland since July 2022 and is currently unemployed.
The Father seeks to appear by video link on the bases outlined in his request to attend by electronic communication that is undated and unsealed but, I think, was filed or at least served on 26 January 2023, which reads:
1. The Respondent has a genuine apprehension that the Applicant will continue to make false accusations that he has breached family violence intervention orders to Victoria police. She has made a number of false accusations previously which resulted in the Respondent being charged and convicted of breaches and a community Corrections Order being issued. The CCO was reversed on appeal.
2. The Applicant continue to bait the Respondent by calling him and then taking screen shots of the call and reporting it to Victoria Police.
3. The. Respondent has had to leave Victoria and currently resides in Queensland as he is fearful that she will continue to make false accusations about the Respondent which will result in him being arrested.
4. If the Respondent is granted spend time with the child by way of court orders, the Respondent will be able to show the Court orders to the police in the event that further accusations are made against him and he is arrested.
5. The Respondent genuinely believes that the Applicant is abusing the court processes to keep him away from the child and causing him to be subject to police interrogations.
6. The Respondent feels safer communicating with the Court by electronic means until such time that he is granted spend time with the child.
That application is opposed by the Mother and the Independent Children’s Lawyer (‘ICL’) on a variety of bases, including that it will be necessary to make credit findings in the circumstances of there being serious allegations of family violence. The allegations of family violence are strongly resisted by the Father.
The Mother points to allegations of the Father's behaviour on two prior occasions when appearing via video link on 15 June 2022 before a Senior Judicial Registrar and on 18 August 2022 before the judge who had the conduct of this matter at that time. It is alleged that on both of these occasions, the Father’s behaviour over video call was such that the Father left the hearings before they were adjourned. The Mother says that on 15 June 2022, he left the Microsoft Teams meeting in a heightened state, and on 18 August 2022 he had to be removed from the Microsoft Teams meeting. Those matters are not conceded and may well be a fact in issue. In any event, I cannot proceed today on the basis that those allegations of his behaviour on those days is correct. It is further put that were the matter to be within the formal confines of the courtroom, that the Father's behaviour would be better and more likely to assist the elucidation of the truth of the allegations. As discussed with the solicitor for the Mother, I cannot prejudge the allegations of his behaviour on 15 June 2022 and 18 August 2022, assuming that controversy, if it continues, is relevant. Further, I am not satisfied that, if it is true that the Father behaved badly on those days, his behaviour in the courtroom will be any better. In one sense, the Mother's position seeks to protect the Father from sabotaging his own case. However, I am not proceeding on the basis that those allegations are true.
I am told that the Father is now unemployed and would have financial difficulty in affording to travel to Melbourne for the hearing. The Father is represented pursuant to a grant of assistance, pursuant to the section 102NA family violence cross-examination scheme.
Balancing all of those matters and taking into account all of the matters at Rule 15.16 of the Federal Circuit and Family Court Rules (Family Law) Rules 2021 (Cth), I will accept the Father's application to appear by video link.
I note that his counsel, who appeared this day, assured me that proper facilities will be available for the Father to give evidence by video in contradistinction to the manner in which he gave evidence or appeared when the matter was last before me. Before me that day, it is clear that the Father appeared by holding a mobile phone in a motor car. I have been assured that he will have proper facilities by way of a computer with camera and/or laptop and/or iPad and to be in a room where it will be apparent that he will be by himself and that the camera would be fixed, as opposed to he having to hold it for the duration of the hearing. On the basis of that assurance, I will grant the Father's application.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 February 2023
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