Gormley & Gormley (No 3)
[2023] FedCFamC1F 582
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gormley & Gormley (No 3) [2023] FedCFamC1F 582
File number: CAC 2949 of 2020 Judgment of: CAMPTON J Date of judgment: 12 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to have the husband’s father give evidence by electronic means – Where the husband’s father is experiencing health complications and lives four hours’ drive from the Court – Application granted. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 12 July 2023 Place: Sydney Counsel for the Applicant: Mr Matthews KC with Ms Tulloch Solicitor for the Applicant: Ormans Solicitors Counsel for the Respondent: Mr Puckey KC Solicitor for the Respondent: Walsh & Blair ORDERS
CAC 2949 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GORMLEY
Applicant
AND: MR GORMLEY
First Respondent
order made by:
CAMPTON J
DATE OF ORDER:
12 JULY 2023
THE COURT ORDERS THAT:
1.The husband have leave to make an oral application for a witness in his case, his father, to be made available for cross-examination by way of Microsoft Teams.
2.The husband have leave to make his father available for cross-examination by way of Microsoft Teams, on the following conditions:
(a)The husband’s father shall attend the husband’s solicitor’s office at a time to be directed;
(b)That the evidence of the husband’s father shall be given in a confined or closed room with no other person in the room other than an assistant who has had no involvement in this litigation to be selected by husband’s solicitors;
(c)The assistant is to help husband’s father with technology and accessing documents if necessary;
(d)The husband’s solicitors shall do all such things that are necessary by 9.00 am tomorrow morning to ensure that the husband’s father has all documents as nominated by the wife’s solicitors available in hard copy in the room from which he will be given evidence; and
(e)The parties shall ensure that if any documents to be used in the course of cross‑examination of the husband’s father are different to those already in evidence, the documents shall be made available to all parties and to the Court.
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 Gormley & Gormley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine an oral application made by the husband in the course of the third day of a five day trial in the proceedings between the husband and wife pursuant to s 79 of the Family Law Act 1975 (Cth).
The application made by the husband orally without objection is for his father to give his evidence and to be cross-examined by way of Microsoft Teams. The wife opposes the oral application.
Directions were made listing this matter over the five days and setting out the schedule for filing material to be relied upon on 12 August 2022. The affidavit evidence of the parties was belatedly filed in the shadow of the trial, being during June 2023.
Rule 15.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) proscribes a process whereby a party may request to adduce evidence from a witness by way of electronic communication. That rule proscribes that the request is to be made in writing at least 28 days before the date fixed for the start of a trial, and it is to set out the facts relied upon in support of the request, whether the other party agrees or objects, and the nature of the electronic communication. It additionally should set out the place from which the witness will give evidence and the circumstances existing at that place from which evidence will be taken. It must set out the relevance of the evidence to be given by the witness, and any other aspects as to the mechanics of the giving of the evidence. It is unequivocal that the husband has not complied with the requirements of the rule.
It is uncontroversial that the husband’s father is 84 years of age, that in 2021 he was diagnosed with an illness and on the wife’s evidence he has struggled with his health and remains unwell. It is further uncontroversial that he resides in the J Town area of New South Wales, and that the drive to Sydney to give evidence will take him four hours each way.
The first notice that the husband provided to the wife of an intention to seek leave for his father to give his evidence by way of Microsoft Teams occurred in the middle of last week, being on or about 5 July 2023 by way of a letter from the husband’s solicitors to the wife’s solicitors.
In opposing the application, King’s Counsel for the wife identifies a scepticism in relation to the contents of the letter from the husband’s solicitors, and suggests there was some degree of either miscommunication or over exaggeration in relation to the medical treatments and/or attendances by the husband’s father upon medical practitioners in City R over yesterday and today. It seems that the husband’s father attended his general practitioner yesterday and has a consultation with his specialist today.
King’s Counsel for the wife indicates clearly that he wants the husband’s father to be present in Court so that he can take him through documents through cross-examination, and (at least implicitly) contends that credit could be an issue in relation to the evidence from the husband’s father, and potentially that demeanour may also be a relevant matter to take into account. There is little doubt that the focus of the husband’s father’s cross-examination, in addition to matters grounded from memory, will also be grounded from a forensic consideration of documentary evidence.
The evidence to be given by the husband’s father goes to fundamentally important issues in this case, including:
(a)When cohabitation between the husband and wife started;
(b)Albeit to a limited evidentiary value, the physical role undertaken by the wife as to the operation of the business enterprises during the period of the marriage;
(c)The facts, circumstances and communications surrounding succession planning arrangements in 2014; and
(d)Matters both currently and into the future as to the contended ownership and control of a trading family discretionary trust; and
(e)The enforcement of a mortgage securing a loan obligation payable by the husband and wife to the witness.
In support of the oral application, King’s Counsel for the husband identifies the difficulties encountered with health of husband’s father and the practicalities of him attending to give evidence in person.
Ultimately the Court has a discretion as to how evidence is to be given by a witness. In exercising this discretion, the relevant matters I take into account are:
(a)Distance between the husband’s father’s usual place of residence and the Court;
(b)The uncontroversial matters as to husband’s father’s health challenges and the wife’s observations as to his presentation;
(c)The Court’s experience in dealing with the giving of evidence by parties and witnesses through Microsoft Teams communication;
(d)The importance of the evidence of the husband’s father to the s 79 determination;
(e)The proposals of the husband whereby his father would attend in the offices of the husband’s solicitors in J Town, that he would be in an appropriately confined room with an uninvolved assistant to help him with technology and to access hard copies of documents that one would assume would be paginated and made available to the parties and to me during the course of that cross-examination, if those documents are not already in evidence.
While it is a closely balanced application, I am confident having regard to the Court’s experience in dealing with electronic evidence that any potential unfairness that is contended by the wife can be met by way of the processes identified in these reasons.
For the above reasons, I make the orders as set out at the forefront of this judgment.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 12 July 2023
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