HUNTER & MARSAILLE

[2012] FamCA 1022

FAMILY COURT OF AUSTRALIA

HUNTER & MARSAILLE [2012] FamCA 1022

FAMILY LAW – PRACTICE AND PROCEDURE – Where the Mother requests that certain professional and lay witnesses give evidence by telephone – Where the Father wishes to show those witnesses certain documents – Where the representatives of the Mother have agreed to provide those witnesses with the documents in advance – Where there is otherwise no objection to the witnesses giving evidence by telephone

APPLICANT: Ms Hunter

RESPONDENT: Mr Marsaille

INDEPENDENT CHILDREN’S LAWYER: Ms V. Khushal

FILE NUMBER: BRC 2477 of 2008

DATE DELIVERED: 3 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 3 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hammond

SOLICITOR FOR THE APPLICANT: SBA Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Bridges Family Law Specialists

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McGee

Orders

1. The Applicant have leave for Dr B, Ms C, Ms D and Ms E to appear by telephone.

1. The Applicant have leave to issue a subpoena to Ms E to give evidence.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunter & Marsaille has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2477 of 2008

Ms Hunter

Applicant

And

Mr Marsaille

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. There is an oral application made on behalf of the Applicant Mother this morning, pursuant to Orders made by his Honour Justice Murphy on 4 November 2012, that three witnesses give evidence by telephone, namely Dr B, a psychiatrist, Ms C, a psychologist, and one Ms D. No objection was taken by the Father to the two professional witnesses referred to giving evidence, or indeed, Ms D, giving evidence by telephone, provided there was access to the transcript of proceedings of 9 May 2011 about which the Father seeks to ask those witnesses some questions.

2. I confirmed with Counsel for the Mother that in the case of Dr B, he already has the relevant transcript, and arrangements will be made on behalf of the Mother to provide a copy of that transcript to those witnesses before they give evidence.

3. The Independent Children’s Lawyer confirms that she had given notice to the Mother that witnesses, other than professional witnesses, ought be available to attend to give evidence in person.

4. Normally, outside of professional witnesses whose convenience is to be met, the Court requires lay witnesses to be present to give evidence and that is particularly so where the evidence that they give is contentious. Ms D, in her affidavit, provides evidence, no doubt disputed by the Father, in relation to observations she made of interactions between the parties, for example, and contains criticisms of the Father in that respect. Normally, the Father ought have an opportunity to confront such a witness in person by having her attend in person.

5. In the end result, by reason of her lack of financial circumstances, the Mother is unable to have Ms D present in Brisbane, given that Ms D presently resides in Townsville.

6. In the end, neither the Independent Children’s Lawyer, or the Father, in the circumstances opposed Ms D giving the evidence, and of course the corollary of such a witness not being physically present in Court may be that the effect of their evidence, or at least its full effect, is somewhat lost by being given over the end of a telephone as opposed to being present.

7. I will take that matter into account to the extent I need to in terms of assessing the evidence from that witness. In the event, I therefore give leave to the Mother to call each of Dr B, Ms C and Ms D to give evidence by telephone.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 3 December 2012.

Associate:

Date:  10 December 2012