JEFFS & MARSHALL
[2018] FCCA 3185
•31 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFS & MARSHALL | [2018] FCCA 3185 |
| Catchwords: PRACTICE AND PROCEDURE – Application to appear by telephone or videolink – matter will proceed on an undefended basis as far as the mother’s case is concerned if she does not attend in person on the next occasion. |
| Applicant: | MS JEFFS |
| Respondent: | MR MARSHALL |
| File Number: | MLC 7616 of 2016 |
| Judgment of: | Judge Harland |
| Hearing date: | 31 October 2018 |
| Date of Last Submission: | 31 October 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 31 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Teicher |
| Solicitors for the Applicant: | Cathleen Corridon & Associates |
| Counsel for the Respondent: | Ms Healy |
| Solicitors for the Respondent: | CBD Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Devine |
| Solicitors for the Independent Children’s Lawyer: | Altavilla Family Law |
ORDERS
The matter remain listed with priority on 7, 8 and 9 November 2018.
The mother is required to attend in person at Melbourne on 7, 8 and 9 November 2018.
The mother’s supporting witnesses are required to attend in person to give evidence, with the exception of professional witnesses pursuant to Order 4 herein.
Any professional witness in this matter may appear by telephone with the consent of the other parties.
In the event that the mother fails to attend in person on at Melbourne at 10.00am on 7 November 2018, or on 8 or 9 November 2018, leave be granted to the father and the Independent Children’s Lawyer to proceed on an undefended basis.
The Independent Children’s Lawyer be granted leave to issue subpoenas with short service to the following organisations to produce documents and/or give evidence:
(a)Ms J, Department of Family and Community Services, New South Wales;
(b)Any other individual from the Department of Family and Community Services, New South Wales;
(c)Ms K, Department of Health & Human Services, Victoria;
(d)Any other individual from the Department of Health & Human Services, Victoria;
(e)The Detective Inspector, SOCIT Unit, Suburb A Division of Victoria Police;
(f)Any further individual with knowledge of this case as nominated by the Detective Inspector, SOCIT Unit, Suburb A Division of Victoria Police; and
(g)Any further subpoena that the Independent Children’s Lawyer deems necessary.
The father’s costs of today be reserved.
The Independent Children’s Lawyer provide copies of the following documents to the Family Consultant, Ms S, by 4:00pm 1 November 2018:
(a)Affidavit of Dr S filed 29 October 2018;
(b)Affidavit of Mr D filed 30 October 2018;
(c)Affidavit of Ms L filed 30 October 2018;
(d)Affidavit of the mother filed 30 October 2018, as redacted for admissibility;
(e)Affidavit of Mr M filed 30 October 2018, as redacted for admissibility; and
(f)Affidavit of the father filed 30 October 2018, as redacted for admissibility.
All parties make, file and serve an outline of case document no later than 4:00pm Monday 5 November 2018.
In the event that the father wished to have Dr A available for cross examination, he notify the Independent Children’s Lawyer by 4:00pm Friday 2 November 2018, and the Independent Children’s Lawyer be permitted to provide Dr A with the affidavit of Mr D filed 30 October 2018.
In the event that the mother wishes to have Ms L available for cross examination, she notify the Independent Children’s Lawyer by 4:00pm Friday 2 November 2018.
NOTATION
A.The witnesses are proposed as follows:
I.Mother:
a) The mother
b) Ms W
c) Mr M
d) Dr I
e) Dr S (not required for cross-examination).
II.Father
a) The father
b) Ms D
c) Mr D
d) Ms L (proposed to be called as the Independent Children’s Lawyer’s witness if required for cross-examination)
III.ICL
a) Ms S
b) Dr A (if required)
c) Ms K (DHHS)
d) Ms J (FACS NSW)
e) SOCIT Suburb A
IT IS NOTED that publication of this judgment under the pseudonym Jeffs & Marshall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 7616 of 2016
| MS JEFFS |
Applicant
And
| MR MARSHALL |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The mother made an application to appear at the hearing via video link. She has made this application on previous occasions.
The mother filed an affidavit by Dr S on 20 October 2018. In his letter annexed to that affidavit, he states that the mother underwent an operation on 19 October 2018 and was expected to be an in-patient at the hospital for three to seven days, and thereafter discharged. He says that she will not have any restrictions on travel or her ability to attend Court, other than she is non-weight bearing in one leg and needs to keep the leg elevated the majority of the time. He also referred to the pain medication that she is on which causes lethargy.
The closest Court registry to the mother is the Town 1 Magistrates’ Court. The mother’s Counsel is unable to advise us to whether or not the Town 1 Court is able to accommodate a video link for the dates that the hearing is listed next week, being Wednesday 7 November 2018 to the Friday 9 November 2018.
The application by the mother is opposed by the Independent Children’s Lawyer and the father. The concerns about the mother attending by video include the fact that there are numerous subpoenaed material produced in this matter with many documents that need to be put to various witnesses, including the mother, in cross-examination.
The extent of the mother’s inability to travel is also a real issue of contest in these proceedings, and, in fact, it would be fair to say that the trial has had several false starts due, in no small part, to that issue. Her application also has to be seen against the background where the mother was granted leave on 9 October 2017 to temporarily take the children to Town 2 for a period of 12 weeks in order to undergo an operation and so that she would have the support of her mother in caring for the children. It is highly unusual to make such an order.
What is clear is that despite being required to return, the mother is yet to do so over a year later. The mother’s non-compliance with the orders is compounded by the fact that she also has misled the Court about her relationship with Mr M and exactly where she has been living. She has only been forthcoming with respect to these issues very late in the day.
Unsurprisingly, the Independent Children’s Lawyer, the father and his counsel, and the Court are somewhat cynical about what the mother is stating, given these issues. The mother needs to put her case.
The mother has been given many indulgences in this matter. There are real concerns about the welfare for these children. There are very serious issues that need to be tried in this case. The evidence that the mother has filed from her doctor does not support it being necessary for her to give evidence by video link. It is uncertain as to whether or not the video link would actually be available on the hearing dates and, of course, one of the difficulties with having a party evidence, as opposed to a witness by video link, particularly from a registry that is not a Federal Circuit Court registry, is that the compatibility and reliability of the evidence can somewhat be in issue. There certainly, in my experience, on the last occasion I tried to arrange this in another matter for a witness, the video link did not work and evidence had to be taken with the assistance of a solicitor’s phone on speaker.
Given this matter has had so many false starts, and given that the Court has overlisted this matter with priority for a number of days, meaning that other matters are not being heard, this matter cannot be delayed any further than next week, and I have real concerns that for one reason or another, the video link simply wouldn’t happen.
There is also a real issue about the practicality of it, quite apart from the technical issues, being the difficulty of putting documents in cross-examination to the mother. The mother is in receipt of Legal Aid. Her lawyer is based in Melbourne. Given that it is a Melbourne matter, the mother would be giving evidence from the registry without her lawyer, or counsel, there.
In those circumstances, I refuse the application of the mother to give evidence by video link. For completeness, I also refuse an application for her to give evidence by telephone, as that was put in the alternative in her affidavit. As there are issues in this case of credit and there are issues in terms of parenting capacity, it is important that the Court be able to assess the mother’s demeanour and it simply would be too unsatisfactory to do that by telephone, particularly given that she is a party in the case, not a witness. Even in terms of witnesses, it is one thing for professional witnesses to give evidence by telephone, because there is not an issue about credibility in most instances, but it is quite a different matter with respect to lay witnesses.
With respect to the application that the matter proceed on an undefended basis, next Wednesday, in the event that the mother fails to appear in person, that is an application that was first raised by the Independent Children’s Lawyer in support of the father. Given the history of this matter, which I have only referred to in passing, the number of false starts, and the serious concerns that are raised about the children and parenting capacity of both parents, in my view, it is appropriate to grant leave to the father to proceed on an undefended basis in the event that the mother does not attend in person on Wednesday.
As I indicated when this was raised this morning, it is still going to be necessary to test the evidence and, in particular, to hear from the family report writer, Ms S. It has been arranged that she will give evidence first, subject to a party seeking to have her recalled. In addition, the Independent Children’s Lawyer is issuing several subpoenas for workers from the New South Wales Department of Community Services and Victorian Department of Health and Human Services to give evidence as well as a police officer from the SOCIT Unit at Suburb A.
Even if the matter proceeds on an undefended basis, I anticipate that it may well still take several days.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 7 November 2018
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