Hugh and Sawer (Appearance Electronically of Mother)

[2010] FamCA 950

FAMILY COURT OF AUSTRALIA

HUGH & SAWER (APPEARANCE ELECTRONICALLY OF MOTHER) [2010] FamCA 950

FAMILY LAW – CHILDREN – procedural application – request by solicitor for the mother to appear electronically –  safety concerns in court  – request allowed

APPLICANT: Ms Hugh

RESPONDENT: Mr Sawer

INDEPENDENT CHILDREN’S LAWYER: Mr D. Walker

FILE NUMBER: LNC 511 of 2008

DATE DELIVERED: 17 May 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne - via telephone link

JUDGMENT OF: Bennett J

HEARING DATE: 17 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lewis

SOLICITOR FOR THE APPLICANT: Levis Stace & Cooper, Devonport

RESPONDENT (IN PERSON) Mr Sawer (via telephone)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Walker

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

David Walker & Co,

Devonport

Orders

1. That I grant leave to the mother to make an oral application that her counsel appear at tomorrow’s hearing by electronic means.

2. That I grant such application provided that counsel for the mother provide the Court with a landline telephone number through which the electronic communication can be effected.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: LNC 511 of 2008

MS HUGH

Applicant

And

MR SAWER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(ex tempore)

1. The practitioner for the wife, Mr Lewis, makes oral application for the wife to be represented by electronic means tomorrow at 9 am.  I have asked the father to outline to me any prejudice he believes he suffers by virtue of not having had prior notice of the application.

2. The father chose to address the application for leave to make an application orally with the substance of the application together.  Essentially, he says that Mr Lewis agreed to a hearing in a conference room at the conclusion of a hearing on 12 May 2010 and that he should not be allowed to go back on that agreement. However, it is common ground that there was an incident following the rising of the court last week, and it is said by Mr Lewis that by virtue of that, he has concerns about a court hearing being conducted in a conference room.  I have pronounced orders entitling the ICL to appear tomorrow by telephone.  My reasons are published at [2010] FamCA 452 and I adopt the comments therein as to security concerns and the court’s proper use of technology.

3. The next thing that the father said is that he doesn’t understand why Mr Lewis has to appear on his application to remove the ICL.  I am satisfied that it is appropriate for the mother to be represented.  In those circumstances, it is difficult to extrapolate a prejudice to the father of Mr Lewis appearing by telephone.

4. In relation to the cost, Mr Lewis says that travelling to Launceston will add a further $500 on top of any appearance fee payable by the mother.  The father says that money for fees has never been a problem before, and that $500 is an infinitesimal amount when the total costs of these proceedings are looked at.  The sum of $500 may not be a large sum, but I am not convinced that it is a sum that the mother should have to pay if it is not necessary for her to do so.

5. The mother is not the applicant in this application.  I understand that she opposes the application of the father to have the independent children’s lawyer removed, and she doesn’t propose to adduce evidence, but she is entitled to have Mr Lewis there to make any submissions on her behalf.  In view of the father’s characterisation of Mr Lewis as someone whose appearance is not necessary, I am satisfied that Mr Lewis should be able to attend by electronic means, but that he must provide a secure landline from which to do so.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Associate: 

Date:  26 October 2010