Golly & Wolberink
[2023] FedCFamC1F 722
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Golly & Wolberink [2023] FedCFamC1F 722
File number(s): NCC 1368 of 2019 Judgment of: SMITH J Date of judgment: 8 May 2023 Catchwords: FAMILY LAW – Practice and Procedure – Where the wife brings an application for witnesses in her case to give evidence by audio-visual means – Where the husband and ICL oppose that application – Where there is no prejudice to the husband in having the witnesses appear via audio‑visual means – Where the application to appear by audio visual means is granted Legislation: Evidence Act1995 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.31
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 8 May 2023 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Mr Willoughby Solicitor for the Applicant: Hannaway Lawyers Counsel for the Respondent: Mr Guterres Solicitor for the Respondent: Sexton Family Law Counsel for the Independent Children's Lawyer: Mr Bateman Solicitor for the Independent Children's Lawyer: Bryant McKinnon Lawyers ORDERS
NCC 1368 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GOLLY
Applicant
AND: MS WOLBERINK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
8 MAY 2023
THE COURT ORDERS THAT:
1.The matter is confirmed for Final Hearing in person at City B for 8 days commencing on 15 May 2023 at 10:00am.
2.The witness, Ms C is permitted to give evidence in these proceedings by audio-visual means.
3.The witness, Ms D is permitted to give evidence in these proceedings by audio-visual means.
AND THE COURT ORDERS BY CONSENT THAT:
4.Ms E who has filed an affidavit of the 6 April 2023, is permitted to give evidence in these proceedings by audio-visual means.
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 Golly & Wolberink has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
Smith J:
This matter comes before the Court in respect of an application, filed by the mother on 28 April 2023, which is a request to attend by electronic communication in respect of two witnesses being called in the mother’s case in a parenting proceeding.
The subject witnesses are Ms D, who lives in Town F, Queensland, which is over seven hours drive from City B; and Ms C, who lives, as I understand it, in Town G, which is somewhere between three and four hours’ drive from City B depending upon how quickly one moves and what the traffic is like.
Both of these witnesses have provided evidence in support of the mother’s case. The mother’s case involves allegations of inappropriate sexual conduct. It is a very significant allegation to make.
I will not comment upon the evidence of the two witnesses. In respect of some of it, doubtless, the submission will be that what is being observed is the normal behaviour of young children who are interested in their own bodies and who act in certain ways. There is also, however, a serious question about whether they have given inconsistent evidence, and there will be issues of credibility.
It is always preferable, when a trial is being run in person, for all the witnesses to give evidence in person. If this application had been made before COVID-19 the tendency was to require all witnesses to attend in person.
However, the Court’s experience of running complex cases involving allegations of child sex abuse entirely by audio-visual means have shown that it is possible to run a trial involving these complex matters, including matters of credit, by audio-visual means.
Since COVID-19 regulations no longer, effectively, apply the parties will generally be required to attend in person.
However, the question for witnesses is about balancing the question of convenience for the two witnesses and the difficulties they have, where one of them is over seven hours away and is the mother of two children, and the other witness, although she is only three or four hours away, is also the mother of two children, and the issues that arise if an attendance requirement means they cannot or do not attend. I note, I am told in respect of Ms C that she does not have an extensive support system.
The father and the Independent Children’s Lawyer (“ICL”) oppose the application. A submission is made that, since the COVID-19 rules no longer require that witnesses not attend, and since the witnesses are not unavailable within the meaning of the Evidence Act1995 (Cth), the court should not exercise a discretion to permit these witnesses to give significant evidence by audio-visual means. I understand the position of the father and the ICL, and I do not think it is unreasonable.
However, the court’s experience is that it is possible to have very substantial cross-examination on issues of credit of witnesses by audio-visual means, which is allowed for by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), and there has been no loss of efficacy of such cross-examination by reason of the fact that it is conducted by audio-visual means.
On balance, it seems to me that, in particular with regards to Ms D who comes from Queensland, having had the chance to read her evidence, she should be allowed to attend for cross examination by audio-visual means.
The other witness, Ms C, is located closer, but the reality is that the drive is about four hours of driving, plus breaks, each way. She has got two young children. On balance, having regard to her evidence, I do not think that there is any prejudice to the father or the ICL, or disadvantage to the Court in its inquiry into whether or not there has been abuse, in allowing her also to give her evidence by audio-visual means.
I also note that there appears not to have been strict compliance with the Rules in respect of information required to be given in the application to the extent necessary. Pursuant to rule 1.31, I dispense with full compliance with the Rules as it concerns this application. I do not consider the absence of certain information in the application to be substantive, or something which should cause the application to be refused on the merits.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 30 August 2023
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