Giolla & Giolla

[2024] FedCFamC1F 654

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Giolla & Giolla [2024] FedCFamC1F 654   

File number	MLC 12444 of 2023
Judgment of	WILSON J
Date of judgment	25 September 2024
Catchwords	FAMILY LAW – PRACTICE & PROCEDURE – application for witnesses to appear by video link due to medical conditions – insufficient evidence provided – application dismissed.
Division	Division 1 First Instance
Number of paragraphs	13
Date of last submission	25 September 2024
Date of hearing	25 September 2024
Place	Melbourne
Solicitor for the applicant	Ms B. Ling
Solicitor for the first respondent	Ms S. Khung
Counsel for the second respondent	Mr A. Burnett

ORDERS

MLC 12444 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MR GIOLLA

Applicant

AND

MS GIOLLA

First Respondent

MR B GIOLLA

Second Respondent

ORDER MADE BY	WILSON J
DATE OF ORDER	25 SEPTEMBER 2024

THE COURT ORDERS THAT –

1.The application dated 20 September 2024 for leave for witnesses to give their evidence by video link is dismissed.

2.The case remains fixed for trial commencing on 10 October 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 a pseudonym Giolla & Giolla has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

WILSON J

1. By application in a proceeding filed 20 September 2024 an application has been made for the evidence of at least two parties to be given electronically at the return of the trial scheduled to commence on 10 October 2024.

2. Both persons who are said to be affected by the application assert that they have physical ill health and impairment in their ability to travel so as to give evidence at the trial.

3. It was put by counsel for the second respondent that the health of at least one of the parties would not markedly change between today’s date and the fixed date for the trial.

4. The nature of the particular ailments is in a state which is less than precise and certainty not in a form that provides adequate medical foundation for me to reliably assess the capacity of each proposed witness to travel. Equally the evidence is insufficient to enable me to form a view about why the witnesses cannot travel so as to be present during the trial on 10 October.

5. In respect of the second respondent he is said to be relevant to establishing whether an arrangement properly so characterised as a loan or some other form of the provision of finance. That is a hard swearing allegation. It appears to be that the arrangement is verbal. It will be necessary for the witnesses to be pitted oath against oath to establish the veracity of the claim asserted. That is notoriously difficult by video link and I do not adhere to the video link being used in a hard swearing case where the issue is of that nature.

6. The other witness is said to have sustained some sort of ailment. She apparently has a scar that renders it very difficult for her to talk.

7. Whether the two persons in question will be in a position to attend a trial on 10 October remains to be seen. It is premature to adjourn the trial at this stage. Mr Burnett of counsel for the second respondent indicated that he may wish time to put before me for consideration on 10 October additional medical evidence to bolster his client’s position in respect of inability to appear possibly in support of an adjournment application.

8. At this stage I am not dealing with an adjournment application. I am dealing with a programming issue to get this case to its prescribed start date.

9. The case will remain fixed for trial on 10 October 2024.

10. All parties have liberty to bring before me such applications as they wish.

11. In respect of the proposed start date on 10 October, on that day I will expect the trial to commence or I will expect for an adjournment application to be made on proper material.

12. In those circumstances I dismiss the application for leave for witnesses to give their evidence by video link.

13. The trial is proceeding fixed for 10 October 2024.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson.

Associate:

Dated:       25 September 2024