JAMES & SUTTON

[2015] FamCA 95

FAMILY COURT OF AUSTRALIA

JAMES & SUTTON [2015] FamCA 95

FAMILY LAW – PRACTICE AND PROCEDURE – Application by father to attend at, and give evidence in, parenting proceedings by telephone from the Country B – Where application is opposed by the mother and the Independent Children’s Lawyer – Where issues involved in matter are serious and potentially grave – Where Court of the view that a trial conducted in relation to such matters, with the relevant witness and party appearing by telephone, would not be a fair trial – Where father asserts that he cannot afford to appear in person and that he has some security risks - Where the listing of the trial of the matter has been and imminent prospect since June 2014 – Where safety plan could be implemented – Where Court not persuaded that either of the father’s assertions are sufficient to justify him being permitted to appear by telephone – Where application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms James

RESPONDENT: Mr Sutton

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 807 of 2012

DATE DELIVERED: 3 February 2015

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 3 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr King

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Lawrence

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER

Susan Gray

IT IS NOTED that publication of this judgment by this Court under the pseudonym James & Sutton 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 CAIRNS

FILE NUMBER: CSC 807 of 2012

Ms James

Applicant

And

Mr Sutton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the respondent father to attend at, and give evidence in, the trial of these parenting proceedings by telephone from the Country B.  The application is opposed by both the mother and the Independent Children’s Lawyer.  The notice of trial was issued in about the middle of December 2014 and I am told without contradiction by Mr King, who appears as the solicitor for the mother, that the listing of the trial of this matter has been an imminent prospect since about June of last year. 

2. The issues involved in this matter are serious, indeed potentially grave.  They involve allegations of sexual misconduct by the father towards three children, albeit criminal proceedings against the father in relation to one of those children were dismissed last year during a District Court trial.  Nonetheless the trial will inevitably involve, as I am told by Mr King, positive allegations of sexual misconduct being put to the father.  It appears as though he will deny those, and hence real questions of credit will arise. 

3. I am not merely not persuaded that the investigation of those matters could not be adequately accommodated by the father appearing by telephone, but rather I am positively of the view that a trial conducted in relation to those sorts of issues, with the relevant witness and party appearing by telephone, would not be a fair trial, either to the father or to the other parties.  It would inevitably devolve into an administrative and logistical nightmare, with the father perhaps potentially wishing to cross-examine relevant witnesses by reference to subpoenaed documents and with, I am told, a certainty that the father will be required to be cross-examined by reference to subpoenaed documents as well. 

4. Whilst perhaps that could, in some cases, be accommodated by a tender bundle or set of documents to be put to the father in cross-examination, being forwarded to him in advance, however where there are questions of credibility and where there are documents which may potentially impeach the witness’ credibility, I am not persuaded that the early provision of such documents is necessarily desirable, or indeed in the interests of justice. 

5. The father says that he cannot afford to appear in person and he also says that he has some security risks.  As to the former, as Mr King points out, the question of trial has been a live issue since June of 2014.  Nothing on the material persuades me that the father could not have anticipated the necessity for personal attendance and attempted to obtain or save sufficient funds to purchase a return airfare. 

6. As to the question of security, whilst it may or may not be the case that in the past the father has had threats of physical interference made against him by persons associated with one or more parties, the reality is that the court is highly cognisant of such concerns and they are regularly accommodated by an appropriate Safety Plan being implemented.  Therefore, I am not persuaded that either or those two matters are sufficient to justify the father being permitted to appear by telephone. 

7. The father’s application is dismissed. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 3 February 2015.

Associate:

Date:  3 February 2015