Hillier and Hillier

[2010] FamCA 900

FAMILY COURT OF AUSTRALIA

HILLIER & HILLIER [2010] FamCA 900

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Application to attend by electronic means

Family Law Act 1975 (Cth)

APPLICANT: Mr Hillier

RESPONDENT: Ms Hillier

FILE NUMBER: MLC 4502 of 2009

DATE DELIVERED: 5 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 5 OCTOBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MCCORMICK

SOLICITOR FOR THE APPLICANT: ZOLIS LAWYERS

THE RESPONDENT: IN PERSON

Orders

1. That the parenting issues be adjourned to a date to be fixed and judgment is reserved.

2. That all outstanding remaining financial issues be adjourned for a one day hearing at 10.00am on 17 December 2010.

3. That the husband file and serve any amended application upon which he intends to rely by 4.00pm on Friday 12 November 2010 together with any affidavit in support thereof.

4. That the wife file and serve any further amended response (regardless of whether the husband files and amended application or not) by 4.00pm on Friday 3 December 2010 together with any affidavit material in support thereof.

5. That by 4.00pm on Friday 10 December 2010, the husband file and serve any affidavit material in reply to any material filed on behalf of the wife as set out above.

6. That the husband’s application to attend by electronic means is refused.

IT IS NOTED that publication of this judgment under the pseudonym Hillier & Hillier is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4502  of 2009

MR HILLIER

Applicant

And

MS HILLIER

Respondent

REASONS FOR JUDGMENT

1. The parties in this case have outstanding parenting and financial proceedings.  They were listed for final hearing on 5 October 2010. 

2. Ms Hillier (“the wife”) is not represented by lawyers.  Mr Hillier (“the husband”) is represented by solicitors who briefed counsel to appear before me.

3. The husband lives in the United States.  He is both an Australian citizen and a citizen of the United States.  As at 5 October 2010, he remained living in the United States.  

4. On 8 September 2010, the husband through his solicitor, forwarded to the Court a request to attend by electronic communication.  The wife opposed that application.  The husband was advised by the Court that I would not determine the matter until the day of hearing because it was contested.

5. The husband’s application stated that he resided in the United States and was unable to return to Australia “at this time” because of work commitments and because he was the subject of a warrant for his arrest.  He sought to have the hearing proceed with his involvement by telephone. 

6. In the submissions put on behalf of the husband, Mr McCormick of counsel said that there were three reasons for the order being made.  First, the husband lived in the United States of America.  Secondly, there was said to be the warrant for his arrest and thirdly, there was the fact that the husband’s mother is in the United States and sufficiently ill that he could not leave her.  Counsel added to that the issue of the cost of coming to Australia being prohibitive.

7. The wife’s response was to say that she rejected all of those reasons.  First, she said that the husband had made the choice and would not be returning.  Secondly, she said that she had spoken to the husband’s mother who was living in a retirement village as little as 30 days ago and in reality, the husband was having little contact with his own mother.  Thirdly, the wife said that the husband was working for his girlfriend and earning about $60,000 per annum.

8. The issue in relation to the warrant of apprehension is no longer one of concern.  The warrant which lay in the hands of the Australian Federal Police expired by the effluxion of time in September.  No application was made for a further warrant.

9. No evidence was presented to me in relation to the state of the husband’s mother’s health.

10. In an interlocutory order made in preparation for the final hearing, I ordered the parties to provide a letter setting out the details of their costs incurred.  The husband’s counsel presented such a letter which indicated that his instructor had presented the husband with a bill for over $13,000 in August which was paid in September on behalf of the husband.  Another odd occurrence was the fact that at least twice in his trial affidavit, the husband said he would fly the children to the United States if granted that opportunity.  He said his older children could assist with the care of these children during the flight.  Why those funds would be available and yet his expense to come to Australia was not, was perplexing.  That along with the husband’s statement that he can have his lawyer’s bills paid on his behalf yet cannot get those people to provide him with the necessary funds to come to Australia has a distinctly hollow ring about it and lacks merit.

11. When I put to the wife about what prejudice there was to her by the absence of the husband, it became clear that in this case, the issues of the credit of the parties will be significant. The financial issues involve significant documentation as can be seen by the numerous annexures to the parties’ respective affidavits.  Those two issues alone make it important for the husband to be present.  No inquiries have been made about the prospect of a video conferencing and even that is somewhat unsatisfactory having regard to those two issues. 

12. Rule 5.06 of the Family Law Rules 2004 provides that a party may request permission to give evidence in the way proposed by the husband. Rule 5.06 (5) provides that the Court may take into account a number of matters. I now turn to those.

13. There is no doubt a significant distance between the husband in the United States and the Court sitting in Melbourne.  However, as a person who lived in Australia and had significant business interests here, it is hard to see how distance is a factor. 

14. The husband is a large man who may find air travel inconvenient although that has not seemed to be a problem in the past.  That is more likely a costs issue in relation to the category of travel.

15. Another issue relates to the difficulty in attending because of disability.  No suggestion was made that the husband was disabled.

16. Another issue relates to the expense associated with attending but as I have pointed out, there is no merit to that argument.

17. Whilst there will be significant savings for the husband in respect of telephone communication, the overriding consideration is that each party is entitled to a fair trial.  The wife would feel significantly prejudiced if she had to cross-examine the husband by telephone.  She said that she did not accept that he would be alone but rather would be “coached”.  That is a factor to take into account even if it is simply the wife’s perception.

18. I have taken into account that there are significant financial disputes in this case but it seems to me that to ensure a proper hearing particularly with the wife unrepresented, the handicaps suggested by the husband have little or no merit.  In those circumstances, the husband’s application to attend by telephone communication is refused.

I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 October 2010.

Associate: 

Date:  7 October 2010