Goncharova & Goncharov

Case [2024] FedCFamC1F 731

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…

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AGLC
Goncharova & Goncharov [2024] FedCFamC1F 731
Case
[2024] FedCFamC1F 731
Decision Date

CaseChat Overview and Summary

In the case of Goncharova & Goncharov, the husband sought to have his parents, who reside in Country B, testify remotely due to their alleged inability to fly. The Federal Circuit and Family Court of Australia dismissed the husband's application. The court found that the husband's previous requests for remote testimony were also rejected as they were filed outside the mandated 28-day window. Despite this, the husband filed another application two days before the hearing, seeking the same outcome. The court considered the longstanding dispute over loans allegedly owed to the paternal grandparents, a matter that has been contested since the start of the proceedings. The husband had the burden to establish his case but failed to comply with orders and conduct the necessary inquiries as required by rules 15.16 and 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

The court examined the husband's affidavit, which mentioned a medical crisis involving his father in August 2024, but found that it lacked any medical evidence proving the paternal grandfather's inability to fly. The husband's hearsay opinion did not meet the court's evidentiary standards. The court also noted the husband's failure to ensure his parents could testify or provide evidence that satisfied the necessary legal requirements. Additionally, the court highlighted the husband's oversight in not considering section 7 of the Foreign Evidence Act 1994 (Cth) and section 102C of the Family Law Act 1975 (Cth), which pertain to giving evidence from a foreign country and the giving of testimony in foreign countries, respectively. The court found no evidence to support the husband's claims under these provisions, nor under rules 15.16 and 15.17 of the FCFCOA Rules.

The court dismissed the husband's application for remote testimony, emphasizing that the husband needed to run his case properly rather than requesting adjournments to fix issues. The court granted leave for the parties to rely on certain out-of-time filings but dismissed the husband's application in its entirety. The court granted a specific order from the wife's earlier application and dismissed the remainder of her application. The final order specified that the husband's application in a proceeding was dismissed, and certain out-of-time material could be relied upon, subject to evidentiary objections.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 COUNTRYSection 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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