Fing & Ma
[2023] FedCFamC1F 938
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fing & Ma [2023] FedCFamC1F 938
File number(s): MLC 321 of 2022 Judgment of: MCNAB J Date of judgment: 9 November 2023 Catchwords: FAMILY LAW – PROPERTY – Practice and Procedure - Where parties seek further and better particulars - – Where the second and third respondent seek to have six witnesses give evidence via video link from Country H further to rule 15.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) –– Where there is conflicting Federal Court authority regarding the operation of s 47A of the Federal Court of Australia Act 1976 (Cth) which impacts on determining the proper approach regarding whether permission is required from the government of Country H to adduce video-link evidence from a witness from that country - Where all witnesses are required to give evidence in Court in Australia. Legislation: Family Law Act 1975 (Cth) ss 102C, 102D and 102E
Federal Court of Australia Act 1976 (Cth) s 47A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06, 15.26, 15.17
Cases cited: Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732
Liu v Option Funds Management Limited [2022] FCA 444
Moy and Pao (No 3) [2021] FamCA 310
Palmer v McGowan (No2) [2022] FCA 32
Division: Division 1 First Instance Number of paragraphs: 44 Date of last submission/s: 1 November 2023 Date of hearing: 30 October 2023 Place: Melbourne Counsel for the Applicant: Mr Clarke Solicitor for the Applicant: Francis Lim Barristers and Solicitors Counsel for the First Respondent: Ms Chia Solicitor for the First Respondent: Lakey Family Law Counsel for the Second and Third Respondents: Mr Seelig Solicitor for the Second and Third Respondents: Destra Law ORDERS
MLC 321 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FING
Applicant
AND: MS MA
First Respondent
MS LIAN
Second Respondent
B PTY LTD
Third Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Amended Application in a Proceeding filed by the applicant on 2 October 2023 be dismissed.
2.The Amended Response to an Application in a Proceeding filed by the first respondent on 17 October 2023 be dismissed.
3.The second and third respondents’ Response to an Application in a Proceeding filed on 9 October 2023 be dismissed.
4.The parties’ costs of and incidental to the applications in a case be reserved to trial.
5.Each of the witnesses proposed to be called by the parties give evidence in person in Court in Australia
6.The matter be adjourned for Mention on 17 November 2023 at 9.30 am via MS Teams.
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 Fing & Ma has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREMcNab J
INTRODUCTION
This matter commenced by an Initiating Application filed by the applicant husband/father Mr Fing on 17 January 2022 for orders in relation to property against the first respondent wife/mother Ms Ma, the second respondent Ms Lian and the third respondent B Pty Ltd.
The applicant seeks by way of final orders to have the properties situated at:
(a)C Street, Town D, Vic (“Town D Property”);
(b)E Street, Vic (“E Street Property”; and
(c)F Street, Melbourne Vic (“F Street Property”);
included as property of the parties to the marriage and for those assets to be divided 60%/40% in his favour. He asserts that he brought those assets into the marriage and that they were purchased with his funds notwithstanding that they are held in the name of the second or third respondent.
The second respondent is the daughter of the wife and Mr G who died in 2005. The second respondent asserts that she or the third respondent is the beneficial owner of the properties. She says that the properties were purchased with funds that she inherited from Mr G on his passing when she was about 16 years old.
A number of procedural orders were made by Registrars of the Court including that the proceeding be transferred to Division 1 of the Court on 10 March 2022. On 5 May 2022 the Court made orders that the applicant file and serve a Statement of Claim setting out the material facts relevant to and in support of all orders sought against the second and third respondents including orders for equitable relief against the respondents. The second and third respondents were required to file and serve defences to the Statement of Claim and there were orders made for the disclosure of documents.
On 24 November 2022 the Court made orders listing the matter for final hearing on 4 December 2023 and for mention on 15 August 2023. Relevantly, the Court made orders that:
3.In the event that a face to face trial is unable to proceed then, pursuant to sections 102C, 102D and 102E of Family Law Act 1975 (Cth) (“the Act”) and rule 1.06 and of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), testimony, appearances and submissions shall be given by video link.
These reasons deal with applications made by the parties as follows.
By an Application in a Proceeding filed on 11 September 2023 by the applicant husband Mr Fing for procedural orders that the defence and response of all respondents be dismissed, that the counterclaim of the third respondent be dismissed and for costs on the basis that further and better particulars had not been provided following orders made of 18 July 2023 (Orders 1, 2, 3 and 4.).
The applicant filed an Amended Application in a Proceeding on 2 October 2023 seeking that the defence of the first respondent be struck out, the defence of the second and third respondent be struck out and that the counterclaim of the third respondent be dismissed.
The first respondent’s Response to the Application in a Proceeding filed on 9 October 2023 sought:
1.The Applicant’s Application in a Proceeding filed on 11 September 2023 be dismissed.
2. The Applicant pay the First Respondent’s costs of and incidental to this application.
The second and third respondents’ Amended Response to the Application in a Proceeding filed on 17 October 2023 sought orders:
1.That the Applicant’s Amended Application in a Proceeding filed on 2 October 2023 be dismissed.
2. Pursuant to rule 15.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules) the Second and Third Respondents be granted leave for the six witnesses identified in the affidavit of [Mr J] filed on 9 October 2023 to appear to give evidence at trial via audio visual link from [Country H].
3. That the Applicant’s Statement of Claim filed 3 June 2022 be struck out.
4. That the Applicant pay the Second and Third Respondents’ costs of and incidental to this application in accordance with Schedule 3 of the Rules.
The second and third respondents’ application for permission pursuant to rule 15.16(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for six witnesses to give evidence from Country H by video-link was supported by evidence and the substance of the evidence that these people are being called to give is set out in paragraphs [3] - [24] of the affidavit of Mr J sworn 9 October 2023.
The Nature of the Claims
I set out the nature of the claims and responses as these impact on the question of adequacy of dealings and on the application for witnesses from Country H to give evidence by video link. The applicant husband claims by an Amended Statement of Claim filed 30 October 2023[1] that:
[1]Exhibit A1.
(a)He was married to the first respondent (the wife) from 2005 to 2022;
(b)The second respondent (the daughter) is the daughter of the wife from an earlier marriage with a different person, Mr G, who died in 2005;
(c)After her marriage to the husband the wife and the daughter immigrated to Australia in about 2008;
(d)The third respondent B Pty Ltd is the trustee of the K Family Trust, the registered proprietor of the Town D property and a corporate trustee under the control of the second respondent as the sole shareholder and director;
(e)B Pty Ltd is under the control of the wife, that the daughter acts as a puppet of the wife and that B Pty Ltd was established in order to enable the wife to transfer funds and assets in an attempt to put them beyond the reach of the husband;
(f)The wife is a de facto director of B Pty Ltd;
(g)At no time before or after 2008 did either the wife or her daughter have any assets or funds of their own other than as may have been given to them from time to time by the husband and that they did not have the financial capacity to purchase the properties;
(h)Between 2004 and 2011 the husband accumulated substantial wealth by his business activities in Country H and held substantial cash funds in six bank accounts maintained by him with Country H banks;
(i)As a result of an oral agreement made between the husband the wife and the wife’s sister Ms L ( the sister-in-law) made in about March 2008 it was agreed that the husband would from time to time transfer funds from his Country H bank accounts to bank accounts held by the sister-in-law who would then transfer funds to the wife to be held in the wife's name in Australia with the Commonwealth Bank and the M Bank;
(j)The Amended Statement of Claim pleads the transfer of 23,335,000 foreign country currency from the husband's bank accounts in Country H to the sister-in-law's bank accounts in Australia in the period from 16 April 2008 to 8 September 2008.
The husband also pleads that in about 2007 the husband and wife entered into an agreement that he would use the second respondent’s name to open a share trading account in Country H with the Bank of Country H and that he would transfer funds into the share trading account and that the funds from the share trading account in Country H would then be transferred into the wife’s bank accounts in Australia to be held by the wife for on behalf and for the benefit of the husband pursuant to the terms of an oral trust agreement regarding the share trading.
The husband alleges that funds were transferred into the daughter’s bank account in Country H which were his funds and that subsequently $789,488 foreign country currency was remitted by the sister-in-law to the daughter’s M Bank account in Australia. It is pleaded that the daughter was aware that they were the husband’s funds and that such funds are traceable proceeds as she holds the funds as constructive trustee for and on behalf of the husband.
It is then asserted that the wife, using trust funds in late 2009, purchased the F Street apartment for $660,000 and paid stamp duty on the acquisition of that property in the sum of $34,670; that in about late 2021 the F Street apartment was sold for the sum of $815,000 and that the proceeds of sale were used to purchase an apartment in E Street for $800,000. The husband alleges that he paid all the outgoings incurred in relation to the E Street apartment and resided in the apartment from mid-2010 until early 2014 with the wife. He then pleads that between early 2014 and early 2015 the wife rented out the E Street apartment and caused the net rental proceeds to be paid to the daughter allegedly doing so in breach of her fiduciary duties to the husband.
It is pleaded that using trust funds in late 2009 the wife purchased a property: N Street for $400,000 and paid stamp duty on the acquisition of about $19,070. She then caused the property to be registered in the name of the daughter. It is pleaded that the daughter knew that she did not make any contribution to the acquisition of the N Street apartment.
The husband pleads that he paid all the outgoings incurred in relation to the N Street apartment. It is also pleaded that between March 2015 and August 2019 the wife rented out the N Street apartment and caused the net rental payments to be paid to the daughter in breach of her fiduciary duties to the husband. The N Street apartment was sold in about mid-2019 and the proceeds of sale paid to the daughter.
It is pleaded that in about early 2014 the husband and wife decided to purchase the Town D property and in order to fund the purchase the husband sold assets in Country H.
It is pleaded (by [56] of the Amended Statement of Claim) that in about early 2014 the wife caused the Town D property to be purchased for the sum of $2,100,000 and the purchase price was paid from trust funds remitted to the wife’s account and the second respondent’s account by the husband as pleaded in paragraphs [10] and [11] of the Amended Statement of Claim together with $960,000 drawn from the proceeds of the husband’s funds which had been allegedly improperly sent by the sister-in-law to the daughter. It is said that in breach of trust the wife caused the third respondent company to be registered as the proprietor of the Town D property. It is pleaded that neither the wife, the daughter or the third respondent had made any contribution to the acquisition of the Town D property and that each of those persons hold the property on trust as constructive trustee for and on behalf of the husband.
The Wife’s Defence
The wife’s defence to the allegation made against her in paragraph [6] of the Amended Statement of Claim that being that at no time, whether before or after April 2008, did the wife and/or the daughter have assets or funds of their own other than those which had been given to them from time to time by the husband. The wife pleads that “she received financial contributions and assets from her former husband [Mr G] … and that her [daughter] inherited assets from the estate of [Mr G].” She does not give details of the contributions, assets and inheritance but says that the same will be provided following discovery: ([6] of the wife’s defence filed 4 July 2022). Otherwise, she pleads to the effect that the husband made no contributions to the purchase of the properties and that the properties were purchased with funds of the daughter, whether they were purchased in the name of the daughter or in the name of the third respondent.
The Daughter and Third Respondent’s Defence
The daughter and third respondent’s defence to the pleading that the respondents did not have funds of their own other than those which were contributed by the husband is that:
(a)prior to his death, her father provided her with funds as and when needed;
(b)she received a substantial inheritance upon and following the death of her father when he died in 2005. That inheritance is said, under the particulars subjoined to paragraph 6 of the defence that “the inheritance was constituted by real estate assets based in [Country H], the Australian value of which was approximately $4,300,000 and that the transfer of monies from the daughter to the mother were of various values and spread over many years.”
(c)from about late 2005, she derived income from those assets that had been bequeathed to her;
(d)from time to time the applicant husband was in receipt of revenues derived from the daughter’s assets in Country H such as rental income and that income was then transferred by the applicant to the daughter’s auntie (the wife’s sister-in-law) so that the auntie could transfer those funds to the daughter for the daughter’s use or to the mother to be held on trust for the daughter;
(e)otherwise, monies received into the daughter’s bank account in Australia were derived from the sale of shares in Country H that were owned by the daughter as consequence of the inheritance;
(f)that from time to time she has given her mother, the first respondent, money for her use.
A dispute has arisen in relation to the adequacy of the pleadings filed by each party and to the adequacy of disclosure by each party. On 18 July 2023, the Court made orders requiring each of the respondents to file further and better particulars of their defences and detailed orders for the provision of specific classes of documents by the respondents.
The matter came before the Court again on 23 August 2023 at which time the second and third respondents sought further time to provide further and better particulars of their defences. Orders were made that by 31 August 2023 the wife file and serve further and better particulars of her defence and that if she failed to do so then her response would stand dismissed.
The Application in a Proceeding filed 11 September 2023 was adjourned to 10 October 2023 and subsequently further adjourned to 30 October 2023. Voluminous submissions and affidavits have been filed by each party in relation to the adequacy of pleadings.
By an affidavit sworn by Mr J on 9 October 2023, he attached further and better particulars of the second and third respondents defences (Attachment SS 17) which is not in the form of a pleading but in a letter to the solicitors for the husband dated 25 September 2023 which sets out in greater detail the basis of the allegations that the funds were received by the daughter from the deceased estate of her father Mr G. Subsequently, additional further and better particulars of the second and third respondent’s defences have been provided on 27 October 2023 and the applicant husband no longer presses for the further particulars from the second and third respondents and does not press for the respondents’ responses to be struck out.
Adequacy of the Applicant’s Particulars
The second and third respondents raise by correspondence dated 14 September 2023 (referred to in written submissions filed on 30 October 2023) that the applicant has failed to properly particularise the allegation that he derived funds to purchase properties from substantial business activities in Country H. The husband has now filed his trial affidavit which goes into considerable detail in relation to claims made in the Statement of Claim. I am not minded to order further and better particulars of the Further Amended Statement of Claim or to strike out parts of the claim. The question of whether the claims made by each party in their respective pleadings are established by the evidence that they file is a matter for trial and final submissions. The parties have fixed the case that they intend to make by the pleadings and they shall not be permitted to move beyond the pleaded cases.
The Taking of Evidence by Witnesses from Country H by Video-Link
Each of the witnesses being asked to give evidence by video-link from Country H are to give evidence in relation to the business dealings of the deceased father of the daughter including about events which took place prior to 2005 and subsequent to that time. All of the evidence that is sought to be called is contentious as it goes to prove a state of affairs directly contrary to that put by the applicant. The evidence of these people will involve reference to documents and require the witnesses to recall events that took place in part about 18 years ago. All witnesses will require a translator. The documents that the witnesses will be referred to are in Country H language.
The second and third respondents point to the applicant’s previous non opposition to the calling of witnesses from Country H by video-link as a basis for the Court granting permission for that to occur. They refer to correspondence from the solicitors for the applicant dated 19 September 2023 at [30] of the Mr J affidavit wherein those solicitors stated:
Our client will consent to your clients adducing evidence from witnesses in [Country H] via AVL from [Country H] provided:
(a)Your clients provide us with credible documentary evidence that they have complied with Rule 15.17(b)-(d) of the Rules.
(b)Your clients provide us with the information set out in Rule 15.16(3)(c) and Rule 15.16(4)(c)-(e) of the Rules.
(c)No less than 14 days prior to the trial date, each witness in a foreign country ("Foreign Witness”) must have their identity verified at an Australian Embassy, High Commission or Consulate ("Identity Verification'?. For the purposes of the identity verification, each foreign witness must provide at least two current and valid photo identification including a [Country H] passport, and a [Country H] resident identity card (“Identity Documents”)
(d)The identity verification is completed using the prescribed Department of foreign affairs and trade (D fat) Certification Form (“Certification”)
(e)no less than seven days prior to the trial date the party intending to adduce evidence from a foreign witness must served on the other party a copy of:
(i)the signed, dated and endorsed certification of each foreign witness;
(ii)the signed, dated and endorsed copy identity documents of each foreign witness
The second and third respondents assert that they have complied with the requirements of Rule 15.16 (which deals with the requirement to obtain permission for a witness to appear by electronic means and) and Rule 15.17 which provides:
Foreign evidence by electronic communication
(1)In addition to the requirements of rule 15.16, a party who proposes to adduce evidence by electronic communication from a witness in a foreign country must satisfy the court:
(a)that the party has made appropriate inquiries to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication; and
(b)whether permission is needed from the foreign country’s government to adduce evidence from a witness in that country by electronic communication; and
(c)if permission is needed—whether permission has been granted or refused; and
(d)if permission has been refused—the reason for refusal; and
(e)whether there are any special requirements for adducing evidence, including:
(i) the administration of an oath; and
(ii) the form of the oath.
(2) In this rule and in paragraph 15.16(4)(h):
foreign country means a country other than Canada, New Zealand, the United Kingdom or the United States of America.
Note 1:A party seeking to adduce evidence from a witness in Canada, New Zealand, the United Kingdom or the United States of America does not have to comply with subrule (1) because these countries do not object to the taking of evidence by electronic communication.
Note 2:The court, instead of granting permission for a party to adduce evidence by electronic communication from a witness in a foreign country, may direct the Registry Manager to send a letter of request to the judicial authorities in the foreign country, requesting the court to take evidence from the witness in accordance with the law of the foreign country. For the requirements for a letter of request to the judicial authorities of a foreign country, see rule 8.07.
The solicitors for the second and third respondents assert that they have complied with the provisions of rule 15.17(1) and refer to the affidavit of Mr J sworn on 9 October 2023 at [36] - [42] which states that they have made enquiries with the Country H Consulate in Sydney and spoke to a person on 17 August 2023 explaining that they were involved in a family law matter on behalf of a client and wished to call evidence in the proceedings via video-link from Country H. It was explained to the person that the Family Court Rules require their client to determine the Country H government’s position on witnesses in Country H providing evidence by electronic communication. The lawyer asked the person whether that was something that the Consulate General could assist with or whether they could provide contact details of someone that could help. The lawyer was told by that person that the enquiry was outside the scope of the Consulate General and that they should speak to a Country H lawyer. This approach was subsequently confirmed by an email sent using an email address advertised on the website for the Consulate General of Country H in Melbourne on 17 August 2023 which stated: “regarding [Country H] legal issues, it is recommended that you consult a lawyer in [Country H] or search and view relevant [Country H] legal documents yourself.” It is put that that enquiry complies with requirements of rule 15.17(1)(a).
The solicitors for the second and third respondents subsequently obtained advice from the (Country H) offices of the firm O Company which was to the effect that the country’s Civil Procedure Law does not proscribe the hearing of witness evidence via audiovisual link from Country H in proceedings conducted in Australia. The article of the law (as quoted in the letter of advice from O Company) provides inter alia:
Except for the circumstances set forth in the preceding paragraph, no foreign agency or individual may without the consent of the competent authorities of [Country H], serve documents, carry out an investigation and collect evidence within the territory of [Country H].
The partner providing the advice states (errors in original):
As my understanding, what the [article] restricts is that the foreign agency or individual physically within the territory of [Country H] to carry out evidence collecting, not including doing via Internet. For instance, it is not restricted by [the article] that the foreign agency in foreign country to collect some evidence such like date in [Country H] via Internet.
That would not be considered to constitute ‘evidence collection’ for the purposes of [the article] of the civil procedure law. Furthermore, there was no ‘restrictions under the civil procedure law or any other law in [Country H] which would restrict witness from voluntarily joining the foreign court hearing and giving evidence in the proceedings by audiovisual link from [Country H].’
The husband objects to the six witnesses giving evidence from Country H on the grounds that:
(a)the evidence to be given by the six witnesses will be highly contentious;
(b)the witnesses’ credibility will be in issue;
(c)they are all material witnesses going to the central issue in the case being the question of the source of funds to purchase property in Australia.
The husband also raises that the witnesses are not independent of the respondent parties, and at [23] of written submissions filed on behalf of the applicant objecting to the evidence to be given by video-link dated 27 October 2023, the husband sets out the relationship of each of the witnesses to the parties.
By an affidavit filed on 26 October 2023 the husband raises issues regarding the conduct of the wife and the second respondent in relation to their application for a spousal visa which was applied for in early 2007. The husband alleges that in the course of that application a person impersonated the late Mr G, who was then deceased, for the purposes of a telephone interview between an immigration officer and someone purporting to be Mr G. This affidavit has not been responded to, but it does raise issues regarding the conduct of the respondents in that application which I am not presently required to determine.
CONSIDERATION
The second and third respondents rely principally on a decision of Liu v Option Funds Management Limited [2022] FCA 444 (Wigney J) in support of this application. At [36] Wigney J held after considering competing submissions about the effect of a specific article of the Country H Civil Procedure Law:
Nothing in the text of [the article] or the report of Prof Tan supports the proposition that by permitting Mr Zhu to give his evidence via video link, the court would somehow contravene [the Civil Procedure Law] or any provision of any other [Country H] law. In those circumstances, considerations of sovereignty or comity do not arise or provide any basis for the court to refuse to exercise the power under section 47A(1) of the FCA Act. It may be accepted that it would be different if [the article] prohibited Mr Zhu from giving evidence by video link from [Country H]. …
The issue of the operation of the article was not fully argued before me nor was the question of whether the approach made by the solicitors for the second and third respondents to the Country H Consulate constituted proper enquiries for the purposes of rules 15.16 or 15.17. It appears that a relevant authority Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732 (Robb J) was not referred to Wigney J. That authority is referred to in Moy and Pao (No 3) [2021] FamCA 310 at [38] – [39] (Wilson J) where his Honour stated:
38.Ms Clarkin relied on the decision in Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd,[9] a decision of Robb J of the Equity Division of the New South Wales Supreme Court. That decision bore certain factual similarities to the facts of this case. Robb J was concerned with a contested application to vacate a trial by reason of the plaintiff’s witnesses being in [Country H]. As with this case, in that case border closures associated with the COVID-19 pandemic prevented witnesses travelling from [Country H] to Australia. The question arose whether audio-visual technology could have been enlivened so that the witness could have given evidence by video link in [Country H]. In that case, Robb J addressed Perram J’s observations in Motorola Solutions Inc v Hytera Communications Corporation Ltd [10] where it was conceded that the time had well passed for official permission to have been obtained by the relevant organ of the [Country H] government through official channels under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Perram J in Motorola also addressed the effect of the Civil Procedure Law […] and the argument that the effect of the Civil Procedure Law was that witnesses located within [Country H] who could not attend a trial in Australia because of the COVID-19 pandemic could not be cross-examined on their affidavits because the taking of evidence by the Federal Court of Australia would be an exercise of sovereignty by the Commonwealth of Australia within the territorial confines of [Country H], requiring permission of the [Country H] state.
39.At paragraph 45 of Robb J’s decision in Haiye Developments, his Honour applied that approach of Perram J in Motorola. There, Robb J held as follows -
This Court may take some comfort from the fact that Perram J was sufficiently satisfied that the [Country H] Procedure Law may make it unlawful for persons within the mainland of [Country H] to give evidence in Australia by audio video link to justify his Honour proceeding on that basis.[2]
[2]Moy and Pao (No 3) [2021] FamCA 310 at [38] – [39] (Wilson J).
There appears to be conflicting Federal Court authority regarding the operation of s 47A of the Federal Court of Australia Act 1976 (Cth) and by analogy this does have an impact on determining the proper approach to determining whether permission is required from the government of Country H to adduce evidence from a witness from that country pursuant to Rule 15.16(1)(b) of the Rules.
For the reasons that follow, I do not have to determine this issue.
It is well-established that the overriding consideration in relation to the exercise of the power to hear evidence by video-link, whether from a foreign country or not, is what the court considers to be the best interests of the administration of justice, including the need to ensure that justice is done between the parties: see Liu v Option Funds Management Limited at [16] and the authorities cited therein.
As was stated in Liu at [16]: “the exercise of the power essentially involves a balancing exercise having regard to the particular facts and circumstances of the case”. His Honour did note at [39] that as a general proposition it is ordinarily preferable for oral evidence to be given in person and the court is generally best assisted by being able to observe a witness in person when they give evidence. In particular, the demeanour of the witness may be relevant in assessing the credibility of the witness and the reliability of their evidence. His Honour held at [40] that the process of giving evidence by video-link is very much a second best alternative and that it may be acceptable where necessary or appropriate but is rarely preferable to receiving the evidence in person in court particularly where interpreters are involved or where the witness has to be taken to numerous documents. He noted that there is much to be said for the proposition that the overall process of taking evidence from witnesses aided by the solemnity of the occasion whereby the witness is required to enter a court room and give an oath or affirmation in the presence of the judge, counsel and solicitors and where there is very little solemnity involved when evidence is given by video-link from a remote location and his Honour cited the discussion in Palmer v McGowan (No2) [2022] FCA 32 at [38] - [45] (Lee J). I agree with those remarks.
Significant factors in Liu were:
(a)that the evidence of the witness in Country H was fairly short and for the most part relatively uncontentious and concerned events and circumstances which in the context of the case as a whole were relatively inconsequential (at [43]);
(b)that the witness was in poor health and that his health might be impacted by travel to Australia; the witness had medical reasons for not being vaccinated against Covid 19 and the possibility of contracting Covid 19 would be increased if he was required to attend places such as international airports where large numbers of people congregate;
(c)the unvaccinated status of the witness was also a relevant consideration in relation to the health and welfare of court staff who might be affected if he was to attend to give evidence in person in Australia.
In this case the witnesses sought to be called from Country H are pivotal and their credit is in issue. The pool of assets under consideration exceeds $10 million and there is no evidence before the Court that any party is unable to arrange for the witnesses to travel to Australia from Country H to give evidence or that there is any other reason that they cannot travel to Australia to give evidence. It is also important that the Court is able to control the process of the witnesses giving evidence and that is better done by having the witnesses attend Court in Australia. For these reasons I find that it is not in the interests of the administration of justice for the witnesses nominated by the second and third respondents to give evidence via video-link from Country H and arrangements should be made for them to give their evidence in Australia.
The husband’s previous lack of opposition to those witnesses giving evidence from Country H is not determinative and I note that position was adopted prior to him being provided with detail of the substance of the evidence that they would give.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 9 November 2023
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