LAINHART & ELLINSON
[2020] FCCA 1877
•7 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAINHART & ELLINSON | [2020] FCCA 1877 |
| Catchwords: FAMILY LAW – Practice and procedure – change in operational requirements due to COVID-19 – parenting and property adjustment issues – whether hearing can properly and safely proceed by way of remote hearing – adjournment of proceedings – need for due process and procedural justice to be afforded to both parties in circumstances where subject child allegedly exposed to significant levels of family violence – need to balance potential unacceptable risk with unacceptable disadvantage in interruption and limitation of child’s relationship with father. |
| Legislation: Federal Circuit Court Rules 2011 (Cth) Federal Circuit Court Act 1976 (Cth), s.69 |
| Cases cited: R & Macdonald; R & Edward Obeid; R & Moses Obeid (No 11) [2020 NSWSC 382] Capic v Ford Motor Company of Australia (Adjournment) [2020 FCA 486] Other resources: Federal Circuit Court, Notice to the Profession, 9 April 2020 Federal Circuit Court, Joint Practice Direction 2 of 2020 – Special Measures in Response to COVID-19, 3 August 2020 |
| Applicant: | MS LAINHART |
| Respondent: | MR ELLINSON |
| File Number: | SYC 4512 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 7 May 2020 |
| Date of Last Submission: | 7 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 7 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Broun Abrahams Burreket |
| Solicitors for the Respondent: | Ogge Law |
| Solicitors for the Independent Children’s Lawyer | Mark Whelan Lawyer |
ORDERS
Vacate the scheduled hearing of these proceedings listed 15 June 2020 – 18 June 2020.
Pursuant to section 13C of the Family Law Act1975 the Independent Children’s Lawyer (if appointed) and the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Legal Aid Commission Early Intervention Unit for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and, subject to the assessment of suitability, each party (and the Independent Children’s Lawyer) shall then attend at such times, dates and places as may be advised to participate in and complete Family Dispute Resolution at a timing determined by the Independent Children’s Lawyer in light of the following Order.
Pursuant to section 13C of the Family Law Act1975 (Cth), the parties and the shall engage in Family Counselling or Family Therapy services (in the latter case at the expense of the parties) as nominated by the Independent Children’s Lawyer and each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling or Family Therapy as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
The matter is adjourned for further call over to 7 August 2020 at 10.00am.
Leave is granted to the Independent Children’s Lawyer to provide a copy of report of Dr B to any Family Counselling or Family Therapy Service engaged in the proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Lainhart & Ellinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYC 4512 of 2018
| MR LAINHART |
Applicant
And
| MR ELLINSON |
Respondent
REASONS FOR JUDGMENT
These proceedings are listed today for callover.
The matter involves both parenting and property adjustment issues.
The proceedings are bitterly contested. I do not use that language to suggest any fault or criticism of either party. On the allegations that are raised, it is entirely explicable that it would be so.
The proceedings have been on foot for some little time, having been commenced by an Application Initiating Proceedings filed 16 July 2018. The time that the matter has been on foot is not excessive, but, certainly for these parties whose relationship is described as “toxic”, it is a significant period. It is unclear what the parties have done or might do to change that circumstance.
The proceedings relate to future care arrangements for a young child, X born in 2017, not yet four.
The parties to the proceedings are the child’s parents. The child’s best interests are represented, competently so, by an Independent Children’s Lawyer.
A Part 15 report has been prepared. That report has been prepared externally because the parties have funds to meet its cost, but also, importantly, as each party raises allegations regarding the mental health of the other, and diagnostic expertise beyond the Court’s family consultants is required.
The proceedings also involve a plea for property relief. That aspect of the matter is suggested to be somewhat complex, involving voluminous documents from various corners of the world which will require significant address during cross-examination.
I do not propose to proceed with the hearing of the matter on a remote or “virtual” basis. As the trial is to be vacated, and as that may be an issue of controversy from the perspective of one party or the other, reasons must be given.
Fundamentally, I am conscious of that which fell from Fullerton J in R & Macdonald; R & Edward Obeid; R & Moses Obeid (No 11) [2020 NSWSC 382] at paragraph 29:
The accused –
(Of course, in this case, the parties are involved in civil litigation, although the consequences have similar impact, ie, profound impact upon their roles and responsibilities as parent) -
- are entitled to a fair trial, which includes, necessarily, fair process and procedures. I am of the view that the trial of the accused in a virtual Courtroom is impractical.
Of course, Fullerton J was dealing with specific problems, as enumerated in the earlier paragraphs of that judgment, included but not limited to one or more participants with extremely unreliable equipment and through no fault of the Court or otherwise.
Similarly, in Capic v Ford Motor Company of Australia (Adjournment) [2020 FCA 486], Perram J was faced with the conduct of a trial using the same software as this Court would use - Microsoft Teams. His Honour ultimately determined to “press on” with the hearing, if that language might be adopted. That was with the caveat, as his Honour observed at paragraph 25:
…if it becomes unworkable, then it can be adjourned. But we must at least try.
The issue in this case is whether trying to press on will afford due process and procedural justice to both parties, and, most importantly, address appropriately and fairly the needs and interests of this young child, whose care arrangements have been, on the mother’s evidence – which I do not for one moment seek to invalidate - typified by exposure to significant levels of family violence. On the father’s case, significant disadvantage has been rendered to the child through a modest practice of supervised time with the father to date.
As His Honour Perram J observed at paragraph 23 of Capic & Ford Motor Company of Australia (Adjournment)[1] - a view no doubt consistent with that of many judicial officers:
If I could be sure that the crisis would have passed by October, I would not hesitate to adjourn all the trials in my docket.
[1] Capic v Ford Motor Company of Australia (Adjournment) [2020 FCA 486],
What one might gather from His Honour’s comment is that, notwithstanding His Honour’s desire to be able to conclude the business of the particular parties before the Court, it was acknowledged that there were shortcomings to the systems available to the Court. As his Honour then opined at paragraph 25:
Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of trial on a party against its will.
In this case, both parties indicate their desire to conclude their business before the Court. Both parties submit to a remote or “virtual” hearing. However, that is with the caveat, if it might be so described, from the wife’s perspective that the consent is offered on the basis that it is a necessity to achieve that end. However, that is not the end of the issue.
I am conscious in addressing the callover of the matter today to adopt a standardised evidence-based process. Accordingly, a checklist prepared by myself referencing the above authorities as well as the decisions of the Court of Appeal of England and Wales in Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, has been prepared and used by me. The checklist seeks to address each of the following factors and on the basis that each “grey” answer adds to the weight of argument for the matter to not proceed as a remote hearing (either because delay will not cause prejudice, the matter is not ready or the interests of the parties or of justice might be impacted by proceeding). The checklist as completed provides:
Yes No All material filed by Applicant? X All material filed by Respondent? X Is there an ICL or other party? X Is there material to be tendered? X Is the material voluminous (i.e in excess of 50 pages)? X Has all material proposed to be tendered served (or, if produced on subpoena has it been inspected)? X Has all material to be tendered been copied and scanned? X Can that material be safely (per public policy and/or by reference to the rights of third party producers) served on all parties and lawyers prior to hearing? X Have the parties previously attended FDR? X If property, is the matter arbitrable? X Does either party suffer a disability making remote/AV appearance difficult or impracticable? X (possibly) Are there significant issues of credit to be raised (especially if requiring documents to be put)? X Is either party seeking orders that will substantially prejudice the position of the other party (e.g sole PR, no communication?) X Will hearing by AV increase the required hearing time? X Do all parties, solicitors and counsel have access to reliable and modern hardware and software? X Is either party self-represented? X Does either party require an interpreter? Will delay substantially prejudice one party more than the other? X Will delay prejudice the rights or safety of a child? X (on father’s case) X (on mother’s case) Are there significant allegations of family violence? X Can the case still be heard this year if adjourned? X
By reference thereto, the factors that might be said to obviate against a remote hearing include:
a)There is an Independent Children’s Lawyer, and thus multiple parties, not merely the parties themselves;
b)There is voluminous material to be tendered and put to witnesses. There are, accordingly, practical difficulties of how that might occur.
c)The material that is to be copied and tendered includes sensitive material that the Court would not ordinarily permit parties to have access to by copying, scanning and having in their possession. This includes records with respect to the parties’ health – physical and mental - police, child welfare and similar records.
As is made clear in the Notice to Profession provided by the Chief Judge of the Federal Circuit Court,[2] as well as by Practice Direction 2 of 2020 – Special Measures in Response to COVID-19,[3] access would not ordinarily be granted to, (the practice direction goes so far as to state it as a positive preclusion), records from child welfare agencies, criminal records, medical records or police records.
[2] Federal Circuit Court, Notice to the Profession, 9 April 2020.
[3] Federal Circuit Court, Joint Practice Direction 2 of 2020 – Special Measures in Response to COVID-19, 3 August 2020.
A practice direction, of course, does not create law of its own[4] and cannot
preclude the exercise of individual discretion. However, I am conscious of the Chief Judge’s indication within the Practice Direction and I entirely agree and adopt the position advanced. There are good reasons why the Federal Circuit Court Rules 2011 (Cth) do not permit photocopy access to that material. It is not produced by those agencies in the belief or expectation that parties might access physical copies.
[4] Per Brooke LJ said (in KU (A Child) v Liverpool City Council[2005] EWCA Civ 475; [2005] 1 WLR 2657) at [48] “The status of a practice direction has been authoritatively delineated by Hale LJ in Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602 at para 21, May LJ in Godwin v Swindon Borough Council [2001] EWCA Civ 1478; [2002] 1 WLR 997 at [11], and Dyson LJ in Leigh v Michelin Tyre plc [2003] EWCA Civ 1766; [2004] 1 WLR 846 at [19]-[21]. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong, they carry no authority at all.”
There are then further difficulties.
The parties have not engaged, or engaged in any meaningful way, in Family Dispute Resolution.
The parties have, as is described, a toxic relationship, but no endeavour has yet been attempted to address that relationship so as to ameliorate those difficulties, if that is at all possible, for the benefit of this young child, noting that on either Application - although they are dramatically apart as to the end-point - these parents will continue to deal with and engage with each other and each be part of this child’s life until she reaches her majority some 14 years hence.
That is not to suggest that there is criticism of the wife if she, in fact, holds less than charitable views towards the father. I do not find that she does. One might infer from the father’s position - denying the mother’s allegations in their totality - that he suggests that the mother is unreasonable in the attitudes she holds towards him, they being less than positive.
If the mother’s allegations are accepted on their face as more probably correct than not, it would be absurd to assume that she would have any other view. She paints the father through her evidence, which is not in any way discounted or disbelieved, as the perpetrator of significant abuse towards both her and the child. To expect her to put on a happy face and engage with the father would be nonsense.
It may not be possible to affect change, but the parties have not tried.
There are significant issues of credit to be raised.
There is substantial prejudice to the position of one party or another. The mother seeks Orders for sole parental responsibility and extremely limited supervised time.
It is probable that the use of remote or virtual hearing will increase the hearing time. The matter is already listed for four days, thus any increase in hearing time could be catastrophic for these parties, possibly seeing the matter adjourned part-heard with even more delay.
There is substantial prejudice to the rights of this child. If the matter proceeds with a less than fulsome, complete and rigorous examination of her future welfare needs, there is the potential that she will, on the mother’s case, be exposed to unacceptable risk. On the father’s case, there is the risk that she will be exposed to unacceptable disadvantage in interruption and limitation of her relationship with him.
All of those factors are addressed within the checklist completed for this and all other matters in callover, and which is incorporated within this document for the sake of transparency.
I am also conscious of that which has fallen from the Court of Appeal of England and Wales, in Re A[5] and Re B[6].
[5] Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583.
[6] Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584.
In Re B, their Honours (at paragraph 4) were clear:
In the present abnormal circumstances, the fundamental principles of substantive law and procedural fairness are unchanged. Alongside other courts and tribunals, the Family Court continues to discharge its duties, particularly in urgent child protection cases. The effective use of communication technology is indispensable to this ability to continue to deliver justice. A remote hearing, where it is appropriate, can replicate some but not all of the characteristics of a fully attended hearing.
Provided good practice is followed, it will be a fair hearing, but we must be alert to ensure that the dynamics and demands of the remote process do not impinge upon the fundamental principles. In particular, experience shows that remote hearings place additional, and in some cases, considerable burdens on the participants. The court must therefore seek to ensure that it does not become overloaded and must make a hard-headed distinction between those decisions that must be prioritised and those that must unfortunately wait until proper time is available.
In Re A at paragraphs 6-9, the Court of Appeal discussed various practice directions and guidance notes provided by heads of jurisdiction and made significant points as to the types of factors, (those which are incorporated as an evidence base into the checklist above), which might obviate against a remote hearing:
6. On 9 April 2020, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division sent a message to all circuit judges and district judges concerning remote working during the ‘lockdown’ [‘the LCJ’s message’]. That message included this guidance:
“Generally:
a. If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way;
b. Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely;
c. Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing.
d. Parties should be told in plain terms at the start of the hearing that it is a court hearing and they must behave accordingly.
In Family Cases in particular:
e. Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely;
f. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;
g. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”
7. It was reported to us that sub paragraph (g) has been interpreted as applying to interim hearings. If that is the case, the President wishes to make it plain that, as the text under the heading ‘Generally’ in sub paragraphs (a) to (c) indicates, the parameters set out thereafter, including sub paragraph (g), are intended to apply to final hearings and not to interim hearings.
8. It follows, applying the principles set out above and the guidance that has been given, that:
i) Final hearings in contested Public Law care or placement for adoption applications are not hearings which are as a category deemed to be suitable for remote hearing; it is, however, possible that a particular final care or placement for adoption case may be heard remotely;
ii) The task of determining whether or not a particular remote hearing should take place is one for the judge or magistrate to whom the case has been allocated, but regard should be had to the above principles and guidance, as amplified below;
iii) The requirement for ‘exceptional circumstances’ applies to live, attended hearings while the current ‘lockdown’ continues.
9. The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:
i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;
iii) Whether the parties are legally represented;
iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;
v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
vi) The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;
vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?
viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;
ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
x) Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.
Their Honours are clear that the ordinary principles of fairness, justice and the need to promote the welfare of children are to be to the fore.
Each decision that is made in a case must, as Forrest J discussed in Gordon & Gordon [2015] FamCA 616, (paragraphs 3 to 5 thereof) be infused with and informed by consideration of the child’s best interests as paramount.
As Legg and Song observe:
Justice Hamill in Rakielbakhour v DPP [2020] NSWSC 323 captured the moment, and the role of the justice system when he stated ‘[w]hile New South Wales moves steadily toward a complete “lock-down” the rule of law, and the courts and lawyers who administer it, are considered to be an essential service’ (at [13]). This is a sentiment that has been expressed across the common law world.[7]
[7] M. Legg, & A. Song (2020). The courts and the pandemic: the role and limits of technology. Law Society Journal NSW, 66 May, 68–70.
Courts must continue to operate. However, fundamentally, they must afford due process.
Consistent with the Practice Directions and guidance of the Chief Judge of the Federal Circuit Court Head, matters of urgency might and should be dealt with, where at all possible, by telephone or video link. When they are not urgent, consideration can and should be given to the adjournment of the proceedings to, one would hope, a happier time when in-person hearings might be possible.
A fundamental matter to address in determining whether to proceed with a remote hearing must be, by reference to the above appellate decisions, the importance and nature of the issues to be determined. There can be nothing more important than the welfare arrangements of a child. Such decisions should not be made lightly nor rushed.
In this case, there are no circumstances of urgency. The urgency, if it might be so described – and using that term in its loosest sense - arises from two factors:
a)Firstly, the desire to avoid delay. However, in some circumstances – and I am satisfied that this is one - delay is inevitable and unavoidable if justice is to be served. Whilst the maxim “justice delayed is justice denied” is well-known, the converse is also true. To rush the decision or proceed by means that impacts perceptions of justice offends the principles discussed in Allesch v Maunz [2000] HCA 40.
b)Secondly, the toxicity of the relationship between the parents and the frugality of present arrangements for the father’s practice of relationship, compel the matter moving forward as quickly as possible. But as quickly as possible is exactly that - as quickly as is possible and so as to accommodate a fair trial infused with procedural fairness and perceptions thereof.
I must have regard to whether the parties are legally represented. They are, and competently so.
I must have regard to the ability of parents and other lay persons to engage and follow remote proceedings meaningfully. What must be observed is that the parties will, in all probability and if strictly compliant with New South Wales Public Health Regulations, attend by video from a location separate from their legal practitioners. They may be able to communicate with each other by email, text message or otherwise, but it does create a barrier. They do not have the benefit of that immediate availability of those legal services, let alone the other support services and comforts that might otherwise be available, something that was expressly addressed, for example, by the Court of Appeal in Re B.[8] I am concerned that the parties attending by such means would create great difficulties and distress for them.
[8] Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584.
I must have regard to whether evidence is to be heard in the proceedings or whether it is to proceed on submissions only. This is a matter that will involve three to four days of strident, zealous cross-examination of witnesses, including expert witnesses. Whilst that is not impossible to achieve by AV services or remote hearing, I am conscious that it may create real difficulties for one or other of the parties to follow.
The parties cannot necessarily see each other. That may be a benefit, particularly in cases such as this involving significant family violence. However, section 69 of the Federal Circuit Court Act 1976 (Cth) compels that such services are only used and employed when it is possible for all parties to see and hear all witnesses.[9] The platform works, of course, on the basis that if there are both parties, their legal representatives and their counsel online, there will be up to ten persons present, (possibly more, if there is a junior leading senior counsel). Only four people can be seen at any given time, and only those who are directly speaking or have last spoken would be seen, unless they are specifically pinned.
[9] For example, the Federal Circuit Court must not exercise the power conferred by subsection 66(1), 67(1) or 68(1) in relation to a video link unless the Judge is satisfied that the is equipped with that enable all eligible persons present in that courtroom or place to see and hear the remote person who is giving testimony or making submissions.
That potentially causes real problems, confusion and, to my mind, concerns which cannot be overcome in this case.
I must have regard to the scale and scope of the hearing. It is a four-day hearing, with extensive cross-examination.
I am simply not satisfied, having regard to the factual and evidential issues in this case, that a fair hearing could be conducted by remote hearing.
The balance of factors referred to by their Honours are equally compelling, and all addressed in the checklist above.
For those reasons, I am not satisfied that a fair trial which would allow both parties to appropriately perceive that justice has been done and that procedural justice has been afforded to them, could be achieved by remote hearing.
Accordingly, Orders are made as follows.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 21 August 2020
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