Holmen and Farley (No. 2)

[2007] FamCA 1014

FAMILY COURT OF AUSTRALIA

HOLMEN & FARLEY (NO. 2) [2007] FamCA 1014

FAMILY LAW – children – pre-trial directions – application to appear and adduce evidence by electronic means – relevance of security concerns

Family Law Rules 2004, Part 5.2

FATHER: MR HOLMEN

MOTHER: MS FARLEY

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 678 of 2004

DATE DELIVERED: 27 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 27 August, 2007

REPRESENTATION

THE FATHER: In person

COUNSEL FOR THE MOTHER: Mr. Combes

SOLICITOR FOR THE MOTHER: McGindle Dalgleish

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr McCarthy

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: McCarthy Hoey

Orders

1. That at the trial of the competing applications for final parenting orders in respect of the child  … born … July, 2003 , the mother may :

   (a)attend;

   (b)give evidence;

   (c)adduce evidence from a witness, her mother;

   by electronic means as provided in these orders.

2. That the solicitors for the mother liaise with Ms. Mardi Jarvis, Judicial Support – Court Services Manager, to arrange for the mother (and, when required, the mother’s mother) to attend the Dandenong registry of the Family Court of Australia to use the video-link between that registry and the Melbourne registry to adduce evidence and, depending on the availability of the video-link, the mother may otherwise attend by that video-link or by telephone. 

1. That the costs of the video-link be borne by the Court. 

1. That the form 2 filed by the mother on 20 August, 2007 be otherwise dismissed. 

1. That the father have leave to:

   (a)file and serve an updating affidavit on or before 28 September, 2007;

   (b)file and serve a subpoena to produce documents directed to D Crèche, in respect of progress and developmental reports about the child;

   (c)file and serve a subpoena to attend and give evidence addressed to Ms K. 

1. That the father’s oral application to file and serve a subpoena to attend and give evidence addressed to the mother’s father be dismissed. 

1. That the independent children’s lawyer have leave to file and serve a subpoena directed to Dr. L, relating to events since Dr. L’s records were produced pursuant to an earlier subpoena.

1. That the independent children’s lawyer provide Dr. E, Mr. M and Ms. C with copies of documents produced by Victoria and Western Australia Police in respect of the father and provide each with a copy of all reports prepared by the others which are to be adduced into evidence at the trial.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as Holmen & Farley.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 678  of 2004

MR HOLMEN

Father

And

MS FARLEY

Mother

Independent children’s lawyer

REASONS FOR JUDGMENT

1. This matter is listed for a trial to commence before me early in October.  The mother seeks to attend the trial by electronic means, and to adduce evidence from her mother by electronic means.  This application was brought on swiftly, as I will be unavailable in the registry from 4 September until the week in which the trial commences. 

1. The case has had a number of recent mentions, relating to the question of applications relating to the question the disposition by the Magistrates’ Court of applications for an intensive corrections order which binds the father.  I should note that pursuant to an order made by me the court was advised by the father’s counsel in the criminal proceedings, that at the Ringwood Magistrates Court the intensive corrections order was re-imposed.  Counsel for the father advised of another return date at that court, approximately a month later, at which the magistrate proposed to enquire into the father’s compliance with conditions of the re-imposed intensive corrections order. 

1. The father was only served with the mother’s application last Tuesday, as he has said, although most of the evidence on which the mother relies had been adduced in the proceedings earlier.  He opposes any order which would allow the mother or her mother to give evidence by video or telephone on the basis of a concern that he will not have a proper chance to cross‑examine the mother and her mother.  From his perspective, they should be at court.  The father has submitted that there is no evidence that he has ever directed any anger at the mother within the court environment, and that she voluntarily comes into the area where he lives.  In summary, he has submitted that this is a fear campaign, brought by the mother;  by that I take him to mean that she is attempting to influence the court against him by raising allegations of violence in this context and asking the court to act on those allegations, prior to the court making any determination on the evidence.

1. The Family Court has a family violence strategy, which is published on its website. The safety of parties, witnesses, other members of the public and staff is of vital importance, and the primacy of safety requires consideration of security at court events and of the perceptions of those involved. When the court determines the matters in dispute between the parties, it is required by law to use an objective test, as is made clear by the definition of “family violence” in s.4 of the Family Law Act 1975.

1. If an application such as this is granted, that does not constitute any finding that the perception on which it is based is reasonable.  It does not constitute a finding on the facts in dispute.  As the decision predates the trial, it could not do so. 

1. The court must consider whether there could be some prejudice to the father if the application is granted.  The father acts for himself.  The application is for evidence to be given by video, not by phone.  On occasions, evidence is given by video in criminal proceedings.  The court must consider any difficulties facing the person cross-examining and the person being cross-examined.  When they have been in an intimate relationship, as is the case in this trial, and one party is not legally represented, that is an important matter. 

1. Rule 5.06(5) of the Family Law Rules 2004 contains a list of factors which the court may consider when deciding an application such as this. One, contained in rule 5.06(5)(f) is any concerns about security, including family violence and intimidation.

1. The offences of which the father was convicted, and placed on the intensive corrections order, include offences committed earlier this year in which the mother was the target of the father’s violence and anger.  Expert evidence to be relied on at trial refers to the mother’s fear.  Evidence relating to changeovers, attended by the mother’s mother, including allegations of conflict and abuse, which will be determined at trial. 

1. I take into account the father’s objection, however I am satisfied that granting the mother’s application will not prejudice a fair trial of the matters in dispute.  To the contrary, it may ensure that parties and the witness are able to give evidence referable to the child’s best interests without the constraints imposed by fear or destabilising anxiety. 

1. I do propose to order that the wife and her mother may give evidence by video-link from a remote location, arranged through liaison with listing staff here.  The court will be responsible for the costs of that link from an outside venue.  When not giving evidence the mother may attend by video or telephone, or not at all.  It is a matter for her lawyers to ensure she is available to give any necessary instructions but this is civil litigation, not a criminal trial, and a party is not compelled to be in attendance throughout.

1. I move to deal with a number of other matters relating to the trial.  First, the independent children's lawyer will have leave to provide copies of materials provided pursuant to subpoena from Victoria Police to Dr E, Mr M and Ms. C.  Second, another subpoena may be directed to Dr  L, to produce documents not in existence when the earlier subpoena was served.  Third, I will grant the father leave to issue a subpoena to produce documents directed to D Creche, being documents relating to the child’s progress and developmental reports in relation to the child.

1. Fourth, I will grant the father leave to issue a subpoena directed to Ms B of the P Church.  He having advised that Ms. B will not swear an affidavit, that will be a subpoena to appear and give evidence. 

1. The father has asked that he be able to subpoena the mother's father to give evidence.  Nothing I have been told satisfies me that any legitimate forensic purpose would be served by such a subpoena.  This is not a Royal Commission.  The father may hold a view that the mother’s father has influenced her conduct.  People are influenced by a range of other people and factors.  I am not satisfied the evidence of the mother’s father would assist in determining facts in issue.

I certify that the preceding
13 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.