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

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.
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.
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.
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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FedCFamC1F 654
Decision Date: 25 September 2024

CaseChat Overview and Summary

In the matter of Giolla & Giolla, the applicant, Mr Giolla, sought an order for certain witnesses to provide their evidence by video link due to alleged medical conditions. The respondents, Ms Giolla and Mr B Giolla, opposed the application. The Federal Circuit and Family Court of Australia was tasked with determining whether the application should be granted. The court had to assess the sufficiency of the evidence provided by the applicant regarding the medical conditions of the proposed witnesses and whether these conditions warranted an exception to the general rule that witnesses should give evidence in person.

The legal issue at the heart of this application was whether the applicant had provided sufficient evidence to establish that the proposed witnesses' medical conditions were such that they could not reasonably attend the court in person. The court had to consider the provisions of Part XIVB of the Family Law Act 1975 (Cth), which governs the use of video links for witness evidence, and any relevant case law or statutory guidelines. The applicant needed to demonstrate a compelling reason for the witnesses to give evidence via video link, as the general preference is for in-person attendance to facilitate cross-examination and ensure the integrity of the proceedings.

The court found that the applicant had not provided adequate evidence to substantiate the claimed medical conditions of the witnesses. The documentation submitted was deemed insufficient to convince the court that the witnesses could not attend the proceedings in person. The court noted that the onus was on the applicant to provide clear and convincing evidence of the witnesses' medical issues. Given the lack of satisfactory evidence, the court dismissed the application for leave to have the witnesses give evidence by video link. The case was set to proceed as scheduled for trial, with all witnesses expected to attend in person.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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