Farley & Duke
[2023] FedCFamC1F 622
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Farley & Duke [2023] FedCFamC1F 622
File number(s): PAC 6596 of 2020 Judgment of: HOGAN J Date of judgment: 21 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father has filed two requests to attend by electronic communication – Where the requests are opposed by the mother – Where the requests to attend by electronic communication are refused. Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 11 Date of hearing: 21 July 2023 Place: Brisbane Solicitor for the Applicant: Mr Hamka, King & York Lawyers Solicitor for the Respondent: Ms Loy, Mitchell Playford & Radburn (Now Trading As MPR Solicitors Pty Ltd) Solicitor for the Independent Children's Lawyer: Ms Berck, Berck Solicitors ORDERS
PAC 6596 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FARLEY
Applicant
AND: MR DUKE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
21 JULY 2023
IT IS ORDERED THAT:
1.The Respondent’s Application, via two Requests to Attend by Electronic Communication filed 20 July 2023, for Mr C and Ms B to be made available for cross‑examination via Microsoft Teams at the final hearing of this matter is refused.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 the pseudonym Farley & Duke has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
There are currently before me two Requests to Attend by Electronic Communication made in relation to two witnesses called in the father's case: the witness Mr C and the witness Ms B. The bases for the applications in relation to each of those witnesses is as set out in the respective Requests to Attend by Electronic Communication filed in support of the orders sought.
I note that Mr C lives about two and a half hours drive from the Court location, according to the document. I also note that Ms B lives about two hours and, say, 45 minutes drive from the Court.
I note that, in the case of Ms B, there are issues with her care of her children, who are three and seven – the requirement to deliver the oldest child to school and to care for the youngest child – and that those circumstances are made more difficult because Ms B’s husband is, it is said, a fly-in fly-out worker who is absent from the home until at least 9 August 2023.
This trial will commence before me on 7 August 2023 and is listed for the week.
It is proposed that Ms B be made available for cross-examination via Teams from her home, and that she can arrange for a friend to supervise her three year old.
It is proposed in relation to Mr C that the difficulties for him in travelling to Court arise in part, I suspect at least inferentially, perhaps by his age but more, it seems, that he underwent surgery recently and is still recovering – although there is no medical evidence to say that he is incapable of driving for a period of two and a half hours. It is proposed that he attend the office of the solicitors and be allocated a room, in essence, where he can be made available for cross‑examination.
The application in relation to each of the witnesses is opposed by Mr Hamka, who appears on behalf of the mother. In essence, the submissions made in opposition to these witnesses being made available to be cross-examined via Teams can be summarised as being that, in this case, the witnesses called by each of the parents provide evidence that seeks, in essence, to undermine – I think was the word used – the veracity of the other parent and the other witnesses; that there will be, as there often is, a large number of requirements to make findings as to veracity (as to credit generally); and that, whilst the difficulties to which I have referred exist for the witnesses, the greater concern is to ensure that the Court receives the best evidence that is available to it and is placed in the best position to make whatever findings of credit and findings as to veracity are needed to be made in order to determine those orders which are in the child's best interests.
The other factor that I have decided to take into account is my experience this week – which has been that we have struggled, in the four-day trial I have just concluded, to take the evidence of witnesses on occasion; that that process has been beset, for whatever reason, by a number of requirements to stand down for those witnesses to be re-joined because they have lost visibility into the Court; that we have had difficulty maintaining, for whatever reason, the audio link without feedback and without the witness on occasion simply being unable to hear either the Counsel or the solicitor asking them the question, which has necessitated me requiring the legal representatives to move around within the courtroom and take up different positions at the bar table.
Whilst those matters are being attended to internally by the Court, I must say that this recent experience has caused me greater concern in terms of according people the opportunity to be made available to be cross-examined via Teams – particularly where I am told that there is likely to be a significant challenge in the case of either parent to the credit of the witnesses called in the other parent's case.
I think the situation differs slightly in relation to the witness Dr D, who has authored the Family Report – whilst, of course, it may be that there is a challenge to his credit in the sense of his reporting of matters that he says in his report were told to him, I think he falls into a slightly different category than lay witnesses called by parties, against whom there is clearly anticipated to be significant challenges to credit.
For those reasons, I intend to decline to accede to the applications, even taking into account the grounds set out in each of the Requests to Attend by Electronic Communication.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 21 July 2023
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