Goncharova & Goncharov
[2024] FedCFamC1F 731
•20 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Goncharova & Goncharov [2024] FedCFamC1F 731
File number(s): SYC 1111 of 2020 Judgment of: BRASCH J Date of judgment: 20 August 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE - Application for witnesses to remotely give evidence – Where the proposed witnesses live in Country B - Where there is unconvincing evidence explaining non-attendance of witnesses – Where no application made pursuant to s 7 of the Foreign Evidence Act 1991 (Cth) – Where applicant had no evidence to meet s 102C of the Family Law Act1975 (Cth) or rr 15.16 and 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)– Application in a Proceeding for witnesses to remotely give evidence dismissed Legislation: Family Law Act 1975 (Cth) ss 79, 102C 17
Federal Circuit Family Court of Australia Act [2021 (Cth) ss 67, 68
Foreign Evidence Act 1994 (Cth), s 7
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) rr 8.07, 15.16, 15.
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732
Division: Division 1 First Instance Number of paragraphs: 66 Date of hearing: 20 August 2024 Place: Sydney Counsel for the Applicant: Mr Trost Solicitor for the Applicant: Genuine Legal Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Consort Family Law ORDERS
SYC 1111 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GONCHAROV
Applicant
AND: MS GONCHAROVA
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
20 AUGUST 2024
THE COURT ORDERS THAT:
1.Save for any evidentiary objections being taken, leave is granted for the parties to rely upon the following material filed out of time:
(a)Wife’s Affidavit filed 1 August 2024;
(b)Wife’s Financial Statement filed 5 August 2024;
(c)Husband’s Affidavit filed 9 August 2024;
(d)Husband’s Financial Statement filed 12 August 2024; and
(e)Husband’s Further Affidavit filed 19 August 2024
2.The Application in a Proceeding filed 18 August 2024 by the husband is dismissed.
3.Order 2 of the Application in a Proceeding filed 8 August 2024 by the wife is granted.
4.The remainder of the Application in a Proceeding filed 8 August 2024 by the wife is dismissed.
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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my Ex Tempore reasons given at the time. I have corrected the transcript for grammatical error and to make the spoken word more amendable to reading.
I have an Application in a Proceeding before me right now. It was filed two days ago on [Sunday] 18 August [2024]. It is accompanied by an affidavit.
For reasons that will become apparent, the wife also has an Application in a Proceeding with respect to the issue of how the respondent husband’s parents are to give evidence, if at all, and she has an affidavit that goes with that.
In terms of the husband's Application in a Proceeding, I am just focusing on Order 3 right now - that he [the respondent husband] seeks leave be granted for the respondent's parents to appear remotely as witnesses in his case by electronic communication.
This is not a new issue.
BACKGROUND
The brief background to this specific issue is as follows.
On 5 August [2024], the husband had his solicitors ask the wife whether his parents could appear electronically; it was said they could not fly.
On 7 August [2024], two requests to appear electronically were filed in the court, one for each parent. The reason there was they are not available to fly - both of them were unable to fly. That was 7 August [2024]. I rejected that requests because they were out of time. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) are very clear. The form even says 28 days beforehand; it was out of time.
Notwithstanding that I had already determined those requests were out of time, the husband now brings an Application in a Proceeding, two days ago, asking exactly the same thing; that his parents be able to give evidence by electronic communications.
THE LOANS
A curiosity in this matter is that the status of loans, said to be owed to the paternal grandparents, is a matter that has been live and in issue since almost the beginning of the proceeding. At least in May 2020, when the husband filed a financial statement, the issue of the loans, which could have the effect of wiping out the asset pool, have been live, so much so that in a hearing in July 2020 the husband's then counsel indicated that the respondent's parents might even join the proceedings.
So, this is not a new issue, and it is hotly contested whether these loans exist, the quantum, whether they exist or exist at all. It is not something that has just arisen, and I observe that it is the husband who has to run his own case. The husband has the onus to establish the case he is presenting.
One would have thought the importance of his parents to this issue would have meant that:
(a)Orders [for filing] would have been complied with; and
(b)the kind of inquiries relevant to rr r 15.16 and 15.17 [of the Rules] would have been made.
But, sadly, that is all lacking.
SUNDAY’S APPLICATION AND AFFIDAVIT
Things moved on, and I have the husband's affidavit now of 18 August [2024] where he says his father (on the husband's say so) had some sort of medical crisis in August 2024. However, as his counsel quite properly accepted, nowhere is there medical evidence that the respondent's father, the paternal grandfather, cannot fly. There is a referral to a hospital for a medical issue. That is as good as it gets.
I do not understand the husband himself to be a doctor, and his hearsay opinion that his father cannot fly just, frankly, does not cut it in terms of the currency of the Court, which is evidence.
Mr Trost for the husband appropriately conceded that the medical evidence does not establish that [he cannot fly]. All I have, as he properly conceded, was his client's say so.
The currency of the Court is evidence, and I do not have any evidence that the paternal grandfather is unable to fly.
In any event, his inability to fly is entirely consistent with what he had said on 5 August and 7 August [2024]. Sure, there might have been some medical episode, but I have no evidence of whether he is even in hospital now or what his status is.
As for the paternal grandmother's inability to fly, that again is a bit of hearsay opinion from the husband.
The medical records he attaches are a year old. They do not persuade me of anything much other than a year ago she had a medical problem, but certainly do not give any evidential support to the idea that the parents cannot fly.
It was also said that the visas might take some time. That is just a bald assertion in the husband's affidavit. There is no evidence to support that.
The wife says something different: visas are not a problem. I have no idea.
But what strikes me as remarkable in this, is that the husband has been pursuing his case that he owes a significant amount of money to his parents, such that no one gets anything in the section 79 proceedings. Yet, he did not take the necessary steps to ensure that his parents either could be here to give evidence, or there was evidence before me that would satisfy me of the matters that I must take into account under rr 15.16 and r 15.17, to which I will come back.
THE GIVING OF EVIDENCE FROM A FOREIGN COUNTRY
Section 7 Foreign Evidence Act
I specifically directed both counsels' attention to s 7 of the Foreign Evidence Act 1994 (Cth). No one - particularly the husband - was able to advance any submissions about that, other than it supported his need for an adjournment. I disagree.
It is the husband who is to run his case and not when there are problems with it say, "I want an adjournment to fix my case up". That is not how litigation works.
This trial was set down last year. It has been moved. Trial directions have not been complied with.
One would have thought the onus was very clearly on the husband to have his ducks in order and in a line, so he could present his best evidence and not come along and say, "I can't tell you about anything under r 15.17, so can I have an adjournment, please?". Litigation does not work that way.
Section 102C Family Law Act
I also directed counsels' attention to s 102C of the Family Law Act 1975 (Cth), which is about the giving of testimony in foreign countries.
The husband's counsel, again quite appropriately, accepted there was no submissions he could make about that, as he did about rr 15.16 and 15.17, to which I will come.
Section 102C of the Family Law Act 1975 (Cth) says:
(2) Testimony must be given on oath or affirmation unless:
(a) the person giving the testimony is in a foreign country…
Country B plainly is. Then it [the subsection] has some matters set out at subsection (b):
(i) The law in force in that country does not permit the person to give testimony on oath or affirmation for the purpose of the proceedings; or
(ii) the law in force in the country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceedings…
Then it says:
(c) the court or a Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.
There is no evidence before me about what Country B's attitude is about giving evidence on oath or affirmation. I have a vacuum.
Rules 15.16 and 15.17
That then conveniently leads into rr 15.16 and 15.17 [of the FCFCOA Rules], which highlights a number of difficulties with the Application in a Proceeding, or that part of it that I am dealing with now.
Rule 15.16 is about attendance by electronic communication. Subsection (3) says that any request for someone to attend electronically as a “must”, [ie] mandatory. The language of the legislature is it [the request] must be made at least five business days before the date fixed for the Court event, or if the Court event is a trial, which this is, at least 28 days before the date fixed for the start of the trial.
That has not been complied with.
The Application in a Proceeding was filed two days ago and after the request itself, which was filed out of time.
There are various things that are required to be addressed [in r 15.16], including if the request relates to evidence to be adduced by a witness in a foreign country, and then the matters required to be addressed under r 15.17. That rule also looks at some of the things Ms Giacomo [for the wife] touched upon in resisting the Application in a Proceeding. She, for her case, wishes to make a call for original loan documents that will be unanswered if the husband's parents remain in Country B. This is, I accept, a document-heavy trial and the idea of people being somewhere else is going to cause difficulties if they appear electronically.
But critically, r 15.17 is again in mandatory terms:
(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…
Note, mandatory:
…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…
There is no evidence before me that deals with that issue, much less satisfies me that Country B has an attitude or not to evidence given by electronic communication. That draws an analogy to the case I was referred to by Ms Giacomo [for the wife], Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732 a New South Wales Supreme Court case where there the court was concerned whether foreign nationals in China could give evidence or not.
Rule 15.17 goes on:
(b)whether permission is needed from the foreign country's government to adduce evidence from a witness in that country by electronic communication…
I have no evidence before me of that either.
(c) If permission is needed - whether permission has been granted or refused;
Nothing to help me there.
(d) If permission has been refused -- the reason for refusal;
Nothing to help me there.
(e) whether there are any special requirements for adducing evidence, including (i) the administration of an oath and (ii) the form of an oath.
As I said in the beginning, this dovetails back to s 102C of the Family Law Act 1975 (Cth).
I should add a foreign country for the purpose of these Rules means countries “other than Canada, New Zealand, the United Kingdom or the United States of America”.
Note two to the rule [r 15.17] also highlights that instead of granting a party permission to adduce evidence by electronic communication from a witness in a foreign country, a letter of request can be sent by the registry manager requesting the court to take evidence from the witness in accordance with r 8.07.
That brings us then [back to] the Foreign Evidence Act 1994 (Cth) to which I directed the parties' attention, including s 7.
No such request has been made.
Disposition
I am not going to allow the husband's parents' affidavits into evidence. I cannot be satisfied with the matters set out in r 15.17, which seems to me to be fatal to the application, in addition to the fact that the application itself is brought outside the 28 days.
I am not convinced, as was submitted, that the medical crisis, or whatever a medical crisis is, means that somehow the Rules did not apply.
On 5 August [2024], as I have already said, requests were made to the wife [to attend electronically] that they cannot fly. There did not seem to be much reason stated there.
As of 7 August [2024] they said to this Court they were not going to fly either.
So, it seems nothing really has changed by the referral to a hospital (whatever that might mean). They do not have any evidence of that either, or that that means that somehow some magical act has intervened meaning the Rules do not apply.
I also do not accept the submission there has not been enough time since 14 August [2024] [for the husband] when there was the medical difficulty for the paternal grandfather – and noting the paternal grandmother's medical evidence is a year old.
I simply do not accept the submission there was not enough time between 14 August and now to put on the kind of evidence that is required for rr 15.16 and 15.17.
But the respondent husband has had in his mind, at least from 5 August [2024] that his parents could not or would not fly.
The wife's opposition to that was made very clear. Indeed, she filed an Application in a Proceeding when the requests were made, asking that the requests be rejected.
It is for the husband to run his case. I am not convinced that this is an appropriate reason to adjourn either, and I do not by reference to the well-known High Court authority of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, where I am entitled to look not just at prejudice to the parties, but also prejudice to the Court’s time.
The idea that “let's come back later and have the paternal grandparents' evidence” is not one that fits with ss 67 or 68 of the Federal Circuit Family Court of Australia Act 2021 (Cth) concerning the efficient conduct of litigation; again, this issue has been alive for at least four years. The issue of the loans is not new.
It is for the husband to run his case, and run his case efficiently, and that is not something that can be achieved if I adjourn the matter off for the taking of the grandparents' evidence at some later point by some other means.
There is much force in Ms Giacomo's submission that such is the seriousness of what they had to say and what the wife wants to put, that their personal attendance is something that would certainly be desirable, but that was not part of the adjournment application.
The adjournment application was so the matters in rr 15.16 and 15.17 could be addressed. It was not for a “let's come back at another time for them to give evidence when they can”.
So, for all of those reasons, the Application in a Proceeding, insofar as Order 3 is concerned that leave be granted for the respondent's parents to give evidence electronically, is dismissed.
NOTATION
After an adjournment for counsel to have discussions, the matter proceeded on the basis that the husband's parents’ affidavits were not read.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 4 November 2024
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