Ester & Lishman (No 2)
[2024] FedCFamC2F 1673
•21 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ester & Lishman (No 2) [2024] FedCFamC2F 1673
File number: SYC 1736 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 21 November 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the Court has ordered that the parties each attend the final hearing in person – Application for father to give evidence remotely – Where the father lives in Country B – Consideration of r 15.16 and r 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the father failed to file his application for leave to appear electronically within 28 days of the final hearing – Where the Court required the father to make appropriate inquiries to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication and there is no evidence of the father having done so – Application in a Proceeding for the father to remotely give evidence dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 15.16, 15.17
Cases cited: Agbabiaka (Evidence from Abroad; Nare Guidance) [2021] UKUT 286 Division: Division 2 Family Law Number of paragraphs: 13 Date of hearing: 21 November 2024 Place: Sydney (via videolink) Counsel for the Applicant: Ms Bateman Solicitor for the Applicant: Supreme Justice Lawyers Solicitor for the Respondent: Ms Kuanpoth, Marsdens Law Group Solicitor for the Independent Children’s Lawyer: Ms Al Hashimi, Hillcrest Family Lawyers Pty Ltd ORDERS
SYC 1736 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ESTER
Applicant
AND: MS LISHMAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
21 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by Mr Ester on 13 November 2024 is dismissed.
2.The Court confirms the commencement of the final hearing of this matter at 10.00 am on 26 November 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Lishman & Ester has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
In these proceedings, orders were made on 3 June 2024 setting the matter down for final hearing in person on 25 November 2025. Notation B of those orders cautioned that “[i]n the event a party does not appear in person at the final hearing, the case may be heard and determined in the absence of that party”.
By way of an Application in a Proceeding filed on 13 November 2024, the applicant father has sought a variation of those orders, such that he be permitted to appear at the final hearing electronically. This application is opposed, including for reasons set out in the respondent mother’s Case Outline filed 20 November 2024.
In determining the father’s application, it is unnecessary to consider the merits-based arguments for the adjournment request, nor the mother’s opposition to it.
I am satisfied that I am unable to grant leave for the father to appear via video link in these proceedings for two reasons. The first, less significant reason, was that the father was required by r 15.16(3)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to file his application for leave to appear via video link within 28 days of the hearing.
Under ordinary circumstances, I would be inclined to consider an application to dispense with the Rules. However, the more significant issue is that, pursuant to r 15.16(4)(h), if the request relates to evidence to be adduced from a witness in a foreign country, then the provisions of r 15.17 must be addressed.
Rule 15.17(1)(a) provides that the party must satisfy the Court that they made appropriate enquiries to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication.
The reasoning of rules such as r 15.16 and r 15.17, is essentially, one that concerns the administration of justice, particularly in the context of the relationship between Nation States. The relevant principle was set out in the case of Agbabiaka (Evidence from Abroad; Nare Guidance) [2021] UKUT 286 at [12], as follows:
There has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country’s diplomatic relations with other States and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice since, if a court or tribunal acts in such a way as to damage international relations with another State, this risks permission being refused in subsequent cases, where evidence needs to be taken from within that State.
In this matter, in the absence of the Court being satisfied that the father has made appropriate enquiries, I do not grant him leave to appear by video link from Country B in respect to the proceedings that are listed in Australia.
The next question becomes whether the proceedings should be adjourned.
In circumstances where this matter has previously been adjourned, and where it was made clear in the orders dated 3 June 2024, that the matter would proceed in the absence of a party, and where the father’s Application in a Proceeding was not made within 28 days as required by r 15.16, I am not satisfied that the final hearing should be adjourned.
I have indicated to the parties, however, that I would be prepared to commence the proceedings one day late, on Tuesday 26 November 2024, to enable the father to make travel arrangements to come to Australia. I also indicated that, in the event the father does not attend, in person, at the commencement of the hearing at 10.00 am on Tuesday 26 November 2024, the case will proceed in the absence of the primary evidence, being, an affidavit of the father.
Counsel for the father will, however, be permitted to appear and tender such documents as are admissible in the proceedings, having regard to the broader evidentiary permissions in respect to parenting proceedings contained in the Family Law Act 1975 (Cth). Counsel for the father will also be permitted to cross examine witnesses presented by the mother and to make such submissions as counsel deems fit.
Accordingly, I make orders that the father’s Application in a Proceeding filed on 13 November 2024 is dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Judge McClelland. Associate:
Dated: 28 November 2024
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