Jackson and Balen

[2011] FamCA 519

FAMILY COURT OF AUSTRALIA

JACKSON & BALEN [2011] FamCA 519

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to give evidence by video link

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Hillier and Hiller [2010] FamCA 900 (5 October 2010)

Australian Competition and Consumer Commission v StoresOnline International Inc [2009] FCA 717

ASIC v Rich (2004) NSWSC 467 (31 May 2004)

APPLICANT: Mr Jackson

RESPONDENT: Ms Balen

FILE NUMBER: SYC 5684 of 2008

DATE DELIVERED: 6 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: By written submissions

JUDGMENT OF: Le Poer Trench J

HEARING DATE: By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Winfield

SOLICITOR FOR THE APPLICANT: Eleanor Murphy & Company Solicitors

SOLICITOR FOR THE RESPONDENT: Tracey Flintoff Lawyers

Orders

1. Pursuant to section 102C of the Family Law Act 1975(Cth) the husband is permitted to give his testimony by video link.

2. Within 28 days the husband is to file and serve an affidavit which contains a detailed account of how he proposes the order made herein may be implemented.

3. The husband is to be responsible for the payment of any cost incurred in the video link.  

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5684 of 2008

Mr Jackson

Applicant

And

Ms Balen

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Jackson (“the husband”) pursuant to section 102C of the Family Law Act 1975 (Cth) (“the Act”) to permit him to give his evidence by video link from Poland in the property proceedings which are shortly to be allocated hearing dates in the Court. In support of that application the husband relies on his affidavit sworn 23 May 2011 and Financial Statement sworn 11 February 2010. That application is opposed by Ms Balen (“the wife”).

2.   On 3 December 2010 the parties filed in Court a collaboratively prepared balance sheet, chronology of non contentious relevant facts, chronology of disputed facts and a list of issues of fact for determination at the final hearing. Each of the husband and wife has provided written submissions and seek the determination of the husband’s application with no further appearance required. Each of the parties has filed an affidavit of evidence in chief to be relied upon in the final hearing of the property dispute.

3.   In his affidavit filed on 26 May 2011 the husband deposes, inter alia, to the following matters.

4.   The husband is residing in Poland and has done so since about October 2007. The parties’ child M resides with the husband in Poland pursuant to orders of a Polish Court. M is six and a half years old.

5.   In early 2010 the husband remarried. His wife is Polish and they have a child who was born in early 2011. His wife does not work and is currently caring for the children.

6.   The husband is solely financially responsible for the care of the parties’ child M. He is also supporting his wife and their child.

7.   The husband was out of work for 16 months from about April 2009. He now has employment, however he describes that as “tenuous.” He is employed on a term contract basis. The husband currently earns the equivalent of $70,000 AUD per annum. He is of the view that his employment may be at risk if he was required to absent himself from Poland for the purpose of attending upon the hearing here in Australia.

8.   The husband is an owner of a property in the United Arab Emirates. The property was tenanted until March 2011. He has been unable to obtain a new tenant since that time. He is required to meet mortgage payments. He is unable to meet the mortgage payments at this time.

9.   The husband acknowledges that he could sell part of the shares in a share portfolio he owns in order to fund the trip to Australia. He does not wish to sell those shares.

10. The husband currently is indebted on an overdraft to the extent of $33,000. That overdraft has been used to pay his Australian legal fees and interest expenses. The husband has a balance of $6,000 available to cover his further legal costs.

11. The husband says the cost of his travel to Australia to participate in a hearing would be $5,000 AUD to $5,500 AUD. The cost of participating in all of three hours of testimony by videolink from Australia is $554 AUD and the same exercise by videolink from Poland is $736 AUD.

12. The husband argues that there is a very small pool of net assets to be divided between the parties.

13. The husband filed a Financial Statement on 10 March 2010. The wife filed a Financial Statement on 7 April 2010. At the time of filing those statements the wife was not in employment but receiving a Newstart Allowance of $488 per week from the government. She was residing with her parents and paying board of $150 per week. Apart from her car she has no assets of any significant value. At the time the husband signed his Financial Statement he was unemployed and his only income consisted of rental and dividend income.

14. The wife opposes the husband being permitted to give his testimony by audiovisual link. She relies on rule 5.06 of the Family Law Rules 2004 (Cth) (see the text of this Rule set out later in these reasons). She submits that a consideration of the matters referred to in that rule would lead the court to exercise its discretion in refusing the application.

15. The wife submits that there is no evidence that the husband has difficulty in attending the hearing in person because of an illness or disability. She submits that there is no corroborating evidence that the husband would lose wages of $280 per day by attending at the hearing in Sydney. Nor is there corroborating evidence supporting the claim that the husband’s employment would be in jeopardy if he was to take leave in Poland to attend the hearing in Sydney.

16. The wife says that there are many matters in dispute which relate to credit. These relate in part to matters about his employment and remuneration. She points to inconsistencies in the husband’s evidence thus far filed. She submits that the husband has been able to find substantial amounts of money to pay legal fees. She says there is a dispute in relation to an alleged loan between the husband and his parents. She submits that the husband could sell some of his shares to fund his trip to Australia.

17. The wife relies on the authority of Hillier and Hiller [2010] FamCA 900 (5 October 2010).

18. The husband in his submissions recites the provision of section 102C of the Act. He submits that the net assets to be divided between the parties are negligible and may in fact prove to be a negative sum. He relies on the “Cost/Benefit” considerations which the Court needs to take into account in the conduct of proceedings between parties. The Court is referred to the decision of the Federal Court in Australian Competition and Consumer Commission v StoresOnline International Inc [2009] FCA 717 and also the decision of the New South Wales Supreme Court in ASIC v Rich (2004) NSWSC 467 (31 May 2004). In the latter case there was a review of a number of decisions of the Courts in relation to witnesses being permitted to give testimony via electronic means such as videolink.

19. The husband submits that the Court would be satisfied in relation to the factors which are set out under section 102F of the Act. Those are practical considerations for the Court to take into account when determining an application such as this.

Determination

20. Section 102C (1) of the Act permits a Judge of the Court to direct or allow testimony to be given by videolink, audio link or other appropriate means. That power may be exercised on application of a party or at the Court’s own initiative. The power in section 102C (1) of the Act must not be exercised unless the Court is satisfied that the conditions set out in section 102F (1) are met. Prima facie those conditions are capable of being met in this case. Section 102F is as follows:

FAMILY LAW ACT 1975 - SECT 102F

Conditions for use of links

Video link

(1)  The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to a video link unless the court or the Judge is satisfied that the following conditions are met in relation to the video link:

(a)  the courtroom is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom to see and hear the person (the remote person) who is:

(i)  giving the testimony; or

(ii)  appearing; or

(iii)  making the submission;

as the case may be, by way of the video link;

(b)  the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom;

(c)  such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the video link;

(d)  such other conditions (if any) as are imposed by the court or a Judge.

(2)  The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

(a)  the form of the video link; and

(b)  the equipment, or class of equipment, used to establish the link; and

(c)  the layout of cameras; and

(d)  the standard of transmission; and

(e)  the speed of transmission; and

(f)  the quality of communication.

Audio link

(3)  The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to an audio link unless the court or a Judge is satisfied that the following conditions are met in relation to the audio link:

(a)  the courtroom is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom to hear the person (the remote person) who is:

(i)  giving the testimony; or

(ii)  appearing; or

(iii)  making the submission;

as the case may be, by way of the audio link;

(b)  the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the court or the Judge is sitting;

(c)  such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the audio link;

(d)  such other conditions (if any) as are imposed by the court or a Judge.

(4)  The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (3)(c) include conditions relating to:

(a)  the form of the audio link; and

(b)  the equipment, or class of equipment, used to establish the audio link; and

(c)  the standard of transmission; and

(d)  the speed of transmission; and

(e)  the quality of communication.

Other appropriate means

(5)  The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to appropriate means other than video link or audio link unless the court or the Judge is satisfied that the following conditions are met in relation to that means:

(a)  the conditions (if any) as are prescribed by the applicable Rules of Court in relation to that other appropriate means;

(b)  such other conditions (if any) as are imposed by the court or the Judge.

Eligible persons

(6)  For the purposes of the application of this section to particular proceedings, eligible persons are such persons as the court or the Judge considers should be treated as eligible persons for the purposes of the proceedings.

Meaning of courtroom

(7)  In this section:

"courtroom" means:

(a)  in relation to a Judge or a court that is not a split court--the courtroom or other place where the Judge or court is sitting; or

(b)  in relation to a split court--each of the courtrooms or places where the Judges of the split court are sitting.

21. The Act gives the Court power to make orders in relation to the cost of and the expenses associated with the audiovisual link as proposed by the husband in this case.

22. Rule 5.06 provides that a party may request permission to give evidence by electronic communication. It provides that the request to the Court may be considered in chambers on the documents. Rule 5.06 (5) sets out the matters which the Court may take into account when considering the request. Those matters are:

(5)   The court may take the following matters into account when considering a request:

(a)    the distance between the party's residence and the place where the court is to sit;

(b)    any difficulty the party has in attending because of illness or disability;

(c)    the expense associated with attending;

(d)    the expense to be incurred, or the savings to be made, by using the electronic communication;

(e)    any concerns about security, including family violence and intimidation;

(f)    whether any other party objects to the request.

23. Considering the matters in rule 5.06 (5) there is considerable distance between the residence of the husband in Poland and the Court in Sydney. Although the husband does not claim to be unable to attend because of illness or disability his principal reasons are cost of attendance, the possibility of putting his employment at risk and the undesirable circumstances of leaving his wife with a young infant and the parties’ child to care for, on her own, in his absence.

24. The husband has given evidence that the cost associated with his attendance at Court is in the region of $5,000 AUD to $5,500 AUD. The cost of the husband attending court by videolink is between $500 AUD and $700 AUD for three hours of evidence.

25. It is clear that the wife objects to the husband giving his evidence by electronic communication.

26. In my view the balance of discretion falls in favour of the husband in this case. The proceedings before the Court to be determined by final hearing are property proceedings. There is only one property in Australia and that is a property in Sydney. The husband also owns property in the United Arab Emirates. There is a share portfolio that has a value of about $107,000.  The asset pool is about $1,000,000. There is $260,000 owing on the United Arab Emirates property and $180,000 owing on the Sydney property. Some of those figures are disputed. The husband claims a CommSec margin loan of $88,000 and a loan from his parents totalling $100,000. Both those liabilities are disputed. The husband claims to owe $40,000 in legal fees in respect of proceedings between the parties in Poland. The parties agree that the husband has a line of credit liability of $31,500.  On the balance sheet provided to the Court by the parties in December 2010 there is possible equity of about $370,000. Should the husband be more correct in his analysis of the net asset position of the parties then the Court would find that the parties’ liabilities exceed the value of their assets.

27. The Court could order the husband to sell some of his share portfolio, however it is not known whether the mortgagee holding security over those shares would agree to release any of the sale proceeds until the loan is repaid.

28. The determination of an application such as this clearly will vary from Judge to Judge having regard to the experience of each Judge in working with witnesses giving oral evidence by videolink.  It is my experience that there is little gained by being able to see a witness in the flesh, as opposed to appearing by videolink, so far as each provides an aid to determine veracity of a witness. I have not experienced a difficulty in being able to measure the truthfulness, or otherwise, of the witness as a result of only being permitted to view the evidence of the witness by videolink.

29. To the extent that a cross-examiner may be handicapped by being unable to immediately show a witness appearing by videolink a document, about which questions might be asked, that difficulty can be overcome by the provision of documents to an agent in Poland who can provide those documents to the witness as the cross-examiner requires or a similar type of arrangement. This circumstance may produce some burden however that can be overcome with a little forward planning.

30. I propose to grant the application as sought by the husband and direct that he provide to the Court within 28 days a detailed description of how the videolink will be implemented including details of the site from which he will appear on the video-link and who else will be present with him at the time he gives evidence. I also propose to order that the husband be responsible for payment of any cost of the videolink.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench  

Associate:   

Date:  6 July 2011