Darbin and Presley

[2008] FamCA 834

FAMILY COURT OF AUSTRALIA

DARBIN & PRESLEY [2008] FamCA 834

FAMILY LAW – PROCESS AND PROCUDURE – Mother to appear by telephone

APPLICANT: Mr Darbin

RESPONDENT: Ms Presley

FILE NUMBER: HBF 1669 of 2004

DATE DELIVERED: 22 April 2008

PLACE DELIVERED: Hobart

JUDGMENT OF: Mushin J

HEARING DATE: 22 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lee

SOLICITOR FOR THE APPLICANT: Ogilvie Jennings

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER: Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER: Legal Aid Commission Of Tasmania

Orders

1. All final applications be listed for trial before Justice Mushin at Hobart commencing at 10:00am Hobart time on Monday 28^th April 2008 subject to part heard cases only.

2. The mother be given leave to appear at the said trial by telephone from South Australia.

3. All questions of costs be reserved.

4. General liberty be reserved to both parties to apply to Justice Mushin in the first   instance if reasonably available.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Darbin & Presley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 1669 /2004

MR DARBIN

Applicant

And

MS PRESLEY

Respondent

REASONS FOR JUDGMENT

1. These are proceedings concerning the five-year-old son of the parties.  The child previously lived with the mother in South Australia and has been living with the father in Tasmania for over two years, during which time it is asserted that the mother has had no contact with the child at all.  The essential issue before me is whether the mother should be authorised to appear in person by telephone from South Australia where she lives rather than come to Hobart.

2. It will be clear from my discussion during this mention today and a further mention that I had last week, also by telephone from Melbourne, that I have a very strong preference for the mother to appear in person in Hobart at the trial.  She has alleged that she has financial difficulties, but her main reasons for not wanting to appear in person in Hobart centre around her allegations that the father has engineered a situation in which he is basically intimidating her and is allegedly acting illegally.

3. Obviously I cannot make any decision on that at this stage. I expect that I will have to do that during the trial but this is not the time for that to happen.  In my view the court is able to provide the mother with adequate protection were she to come to Hobart, although she does not accept that.  Further, it seems to me that she is at no greater risk, if there is a risk at all, from the father were she to be in South Australia or in Hobart. 

4. It is the usual situation, particularly in circumstances in which the dispute is over where a child shall live, and which dispute will involve a significant relocation from Tasmania to South Australia if the mother were to succeed, that the mother should appear personally rather than by telephone.  It is clear that she cannot afford the cost of a video-link up, which would be very considerable indeed, but I would expect significantly more than the cost of her coming to Tasmania.

5. Accordingly, if the trial is to be conducted via electronic means in that way it will need to be by telephone.  In the circumstances, I have decided to take the very unusual and undesirable step of permitting her to appear by telephone.

6. My reasons are as follows: first, the mother has informed me that if I do not accede to her application she will not appear and the matter will proceed undefended.  That is a tempting situation to undertake but in the circumstances, in my view, it is always in the interests of the child that a contrary view in a case should be put in this case by the mother, and albeit that a telephone appearance is far less than satisfactory it is at least something.

7. Secondly, I have on two occasions now, both in this mention and the earlier one to which I have referred, warned the mother that she would be significantly disadvantaged by appearing by electronic means.

8. It is not going to be possible to put documents to her or for her to put documents to others, but that is a matter which she will need to undertake and in the event of that, inferences are to be drawn the chances are quite high that I will draw such inference against her by virtue of the fact that she had ample opportunity to come here, has undertaken the risk, and has not satisfied me that her appearance by electronic means is appropriate.

9. Accordingly on balance I have decided to accede to her application as I have said, but the conduct of this trial will as a result be significantly more difficult than it might otherwise be, and the mother has clearly stated that she understands and undertakes the risk.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: …

Date:  16 October 2008