Dalrymple & Dalrymple

[2003] FamCA 124

[2003] FamCA 124

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  Appeal No. SA6 of 2003

File No. MLM10535 of 2002

BETWEEN:

JOHN ROBERT DALRYMPLE

(Appellant Husband)

and

RACHELLE RENEE DALRYMPLE

(Respondent Wife)

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:          27 February 2003

DATE OF JUDGMENT:      27 February 2003

REASONS FOR JUDGMENT

APPEARANCES:

The appellant husband in person (by telephone link).

Mr Testart of Counsel, instructed by Mahons with Yuncken & Yuncken, Solicitors, DX 35604, Blackburn, appeared on behalf of the respondent wife.

DALRYMPLE and DALRYMPLE
SA6 of 2003
CORAM:  Kay J
DATE OF HEARING:  27 February 2003
DATE OF JUDGMENT:                27 February 2003
FEDERAL MAGISTRATE:  Phipps FM

Catchwords: Courts practice and procedure – audio hearing – applicant overseas – applicant in person – whether necessary to have a hands free speaker phone to conduct trial – s 69 Federal Magistrates Court Act 1999.

REPORTABLE

1. These proceedings were listed before me today as a directions hearing for an appeal from a decision of Phipps FM delivered on 7 January 2003.  With the cooperation of all of the parties I have converted the directions hearing into a hearing of the appeal.

1. The appellant resides in the United States and appears in the proceedings on his own behalf.  I have, with an appropriate concession made from the wife's practitioners, waived any requirement that he files a Notice of Address for Service in Australia.  We have enough means of making contact with Mr Dalrymple to avoid the necessity of added expense in these proceedings.

1. The proceedings arise out of the failure of Mr Dalrymple to enjoy the fruits of a shared residence order over the past summer holidays.  Two of the children of the marriage live with their mother in Australia and there exist orders which make provision for holiday contact to take place in the United States.  For reasons that are in dispute, and which are at the core of the substantive proceedings returnable before the Federal Magistrates Court, no contact took place in December last year or January this year.

1. That led to the father bringing contravention proceedings in the Federal Magistrates Court. He applied to hold the hearing of those contravention proceedings by audio link in accordance with the provisions of Division 5 of Part 6 of the Federal Magistrates Act 1999.

1. That application was heard by the Federal Magistrate on 7 January.  Phipps FM dismissed the application relating to the application for hearing by way of audio link and adjourned the enforcement application to a date to be fixed making the following order 4:

“That the Applicant have leave to make a further application for the hearing to be by video or audio link and that if such an application is made there be set out in an affidavit in support of the application the arrangements proposed to meet the requirements of Section 69 of the Federal Magistrates Act 1999.”

He also ordered the husband to pay the wife's costs fixed at $600. 

1. The husband, aggrieved by the dismissal of the application, has appealed to this Court.  The appeal turns on a very discrete point and again with the appropriate cooperation of all concerned I have waived the requirements relating to further service and waived the requirements relating to the provision of further submissions and have dealt with the hearing itself today having heard from the parties on the issue, particularly on behalf of the respondent.

1. The reasons for the Federal Magistrate dismissing the application can be summarised fairly easily.  He says in paragraph 6 of his reasons for judgment:

“Provision for audio and video links is made in Division V (sic) of the Federal Magistrates Act 1999. It permits there to be testimony by video-link or audio link, appearances of persons by video-link or audio link and the making of submissions by video-link or audio link. Testimony is provided for in section 66, appearance in section 67 and submissions in section 68. Section 69 prescribes conditions for the use of video-links and audio links. Paragraph 69(3)(b) provides:

The Federal Magistrates Court or a Federal Magistrate must not exercise the power conferred by subsection 66(1), 67(1) or 68(1) in relation to an audio link unless the Federal Magistrates Court or the Federal Magistrate is satisfied that the following conditions are met in relation to the audio-link; [and]

(b) the place at which the remote person is located is equipped with facilities, (for example, loud speakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting.”

1. I pause to interpose the definition of an "eligible person" which appears in s 69(5) as follows:

“For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Federal Magistrates Court or a Federal Magistrate considers should be treated as eligible persons for the purposes of that proceeding.”

1. The Magistrate said in paragraph 7:

“I am not satisfied that what is proposed by the applicant would satisfy paragraph 69(3)(b).  He proposes that the audio link be to his home telephone number.  Even if it was a phone equipped with a speaker I would not be satisfied that it would be sufficiently equipped to satisfy paragraph 69(3)(b).”

1. I think he is clearly wrong. The requirement is to provide sufficient equipment to enable all eligible persons to partake in the proceedings by being able to simultaneously hear what is occurring. As there is only one eligible person at the other end of Mr Dalrymple's line, namely Mr Dalrymple, the provision of a telephone is, in my view, more than sufficient to meet the needs of s 69. There is no necessity to have a speaker phone or a series of loud speakers to enable persons who are not eligible persons to be able to hear the proceedings.

1. If Mr Dalrymple was to be represented or there were witnesses that Mr Dalrymple was proposing to rely upon, then it would become necessary to at least have some facility to enable the persons at Mr Dalrymple's end to simultaneously hear what is going on at the other end.  That may be done by an extension telephone, by way of example, or a speaker phone.  But those are not the facts that were presented to the Magistrate nor to me in these proceedings.

1. Accordingly, in my view, the appeal must be allowed and the matter remitted to the Magistrate to proceed forward with the setting of a day for the hearing of the substantive proceedings.  What necessarily follows is the costs order that was made by the Magistrate also has to fall.

1. Mr Testart has urged upon me that there remains a live issue for the Magistrate, namely whether there should be video or audio link.  He has urged upon me that a video link is appropriate because there are issues of credit.  In my view, for what it is worth in these proceedings because the issue is not strictly before me, the Court should be trying to facilitate the resolution of the issue between the parties and not putting barriers in its way. 

1. In this case an Australian court has made an order which will enable a parent non-resident in Australia to have overseas contact or residence periods with his children.  If that order is not being met the Court has an obligation in a sense to inquire as to why the order is not being met and should be endeavouring to facilitate as best it can the hearing of that process rather than placing unnecessary restrictions in the way of the parties. 

1. It is unlikely on the material before me that the requirement to actually physically observe Mr Dalrymple while he tells his story is a requirement necessary for there to be justice done to the respondent who will be no doubt endeavouring to demonstrate that she had a reasonable excuse for not complying with the order.

1. For those reasons I propose at this stage to allow the appeal, set aside the order made by the Magistrate and remit the matter back to the Federal Magistrates Service for an urgent expedited listing of the Form 49 application to be heard by way of audio link which was the issue, as I understood it, that the Magistrate turned his mind to and the only issue that he turned his mind to. 

1. The error that the Magistrate fell into appears to be an error that was not one on the material that I have that was prompted by Mr Testart.  He wanted to lead him into other error and he was not given the chance.  In the circumstances he is entitled to a costs certificate from the Federal Proceedings Costs Fund. 

1. In the matter of Dalrymple I make the following orders:

1.        I dispense with the service of the Notice of Appeal in this matter.

2.The appeal against the orders of Federal Magistrate Phipps made 7 January 2003 be allowed.

3.Orders 1, 4 and 6 of the Federal Magistrate made 7 January 2003 be set aside.

4.The matter be remitted for an expedited hearing before the Federal Magistrates Service.

5.At the expedited hearing the appellant father be at liberty to make submissions and give evidence by audio link and that such audio link be constituted by the use of a telephone at the place where the appellant is giving his evidence and making his submissions.

6.The Court grants to the respondent/wife a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent/wife in respect of the costs incurred by the respondent/wife in relation to the appeal.

.

I certify that the preceding 18 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
The 4th day of March 2003

Associate: Elizabeth Hore