MACALVIN & HARRICKS - [2020] FCCA 1590

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACALVIN & HARRICKS

[2020] FCCA 1590

Catchwords:
FAMILY LAW – Practice and procedure – Change in operational requirements due to COVID-19 – Whether hearing can properly and safely proceed by way of remote hearing – adjournment of proceedings.

Legislation:

Family Law Act 1975 (Cth), s.102NA

Cases cited:

Capic & Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486

R & Macdonald; R & Edward Obeid; R & Moses Obeid (No 11) [2020] NSWSC 382

Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583

Re B (Children)(Remote Hearing: Interim Care Order) [2020] EWCA Civ 584

Applicant:

MR MACALVIN

Respondent:

MS HARRICKS

File Number:

DGC 1094 of 2015

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

The Applicant appeared in person

Solicitors for the Respondent:

Mr Rothschild of Brendan Rothschild Legal Group

Solicitors for the Independent Children's Lawyer:

Ms Talko Nicholas of Talko Nicholas Family Law Pty Ltd

ORDERS

Vacate the listing of these proceedings commencing 18 May 2020.
List the matter for mention and directions 17 June 2020 at 9:30am with a view to:
(a)Dealing with and determining any further interim application that might be made by either party with respect to parenting relief; and/or
(b)Advance the matter to trial at the earliest possible opportunity including, if necessary, an expedited trial as a special fixture.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

DGC 1094 of 2015

MR MACALVIN

Applicant

And

MS HARRICKS

Respondent

REASONS FOR JUDGMENT

These proceedings come before the Court today for callover.
The matter is presently listed for a three-day trial 18 – 20 May 2020. The matter cannot proceed on those dates. The matter is listed for callover to ascertain if it is ready to proceed and, if so, to consider whether it might proceed remotely on fresh dates to be allocated in the week of 15 June 2020.
I am not prepared to proceed with a remote hearing of the matter for the reasons I will give herein.
The proceedings relate to care arrangements for two young children:
a)X, nearly six; and
b)Y, three.
The parties to the proceedings are the children’s parents. The children’s best interests are represented in the proceedings by an Independent Children’s Lawyer.
At callover, it is apparent that each of the parties has been the subject of an Order, pursuant to section 102NA[1]. Those Orders preclude any self represented party cross-examining the other. The Order also allows each self represented party to obtain legal representation through the Legal Aid Commission, Victoria for the purpose of conducting the hearing. Each has obtained, or is in the process of obtaining, that assistance.
[1] Family Law Act 1975 (Cth) s 102NA.
There are a number of issues apparent today which cause me concern that the matter is, on its face, not ready to proceed. These issues include:
a)The above s.102NA Order and the absence of appointment of a legal representative for at least one of the parties. It is unclear whether that appointment can or will occur before the proposed adjourned trial dates;
b)Continuous revisiting of interim arrangements, including, I am informed, an Interim Hearing before the docketed Judge, 20 March 2020, which had sought to vary present arrangements but which did not result in variation;
c)The difficulties and restrictions which arise from COVID-19 and the ability of the parties to travel or provide instructions in a timely manner;
d)The absence of trial material, no doubt delayed and not yet filed as a consequence of the above distractions;
e)The preparation of a further Family Report being in train. That report is, it would seem, one of at least three, if not four, such reports in this case. The report is not yet available, but will be in the near future;
Even with the brief adjournment that would be provided from the originally allocated dates, it would be difficult to comprehend that the parties could be ready or that due process would be afforded to the parties if they are receiving material, particularly in the nature of a Family Report, weeks and possibly days before the scheduled hearing. They would also be receiving each other’s material in a similar timeframe.
The only means by which this matter can proceed, at present, is by remote or Audio Visual, internet-based hearing, using Microsoft Teams. Microsoft Teams has its faults, but is proving (as discussed, for example, by Perram J in Capic & Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486[2] to be a fillip, if nothing else, to allow matters to be addressed when they require some urgent attention. When that is not possible, as it is the case in these proceedings, matters will need to be adjourned to await a face-to-face hearing when possible.
[2] Capic & Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486.
I am conscious that there are a number of matters which impact upon this matter proceeding by Audio Visual link, not the least of which is the fundamental requirement, as discussed, for example, by Fullerton J in R & Macdonald; R & Edward Obeid; R & Moses Obeid (No 11) [2020] NSWSC 382 to afford a fair trial to the parties, which involves, of necessity, fair process and procedure. The view was formed by her Honour, in that case, that the hearing should be adjourned on the basis that the risk to due process and a fair trial outweighed the requirement to proceed.
Similar themes are taken up, for example, by two very recent 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. The English Courts from which those appeals arose are guided by a number of extensive directions from heads of jurisdiction as to the types of matters that might or might not lend themselves to remote hearing. Those guidelines, which of course do not bind this Court, but which are informative and of great assistance, make clear that in family cases in particular, that the needs and desires of the parties should be taken into account and that matters might best proceed when evidence, especially oral evidence, is extremely limited. One might also assume that there is no significant challenge to the evidence and thus no need for significant or extensive cross-examination.
Their Honours comprising the Court of Appeal in Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 set out, at paragraph 9, factors which might influence the Court, including:
a)The importance and nature of the issue to be determined, and whether the outcome is interim or final. In this case, it is final.
b)Whether there is a special need for urgency, or whether the decision can wait. In this case, the urgency is suggested to be noncompliant with an existing Order. However, that alleged noncompliance is somewhat inexplicable, noting that an Interim Hearing was conducted by the docketed Judge as recently as 20 March, only some four or five weeks ago. Accordingly, that Order remains in force, should be complied with, and may well be the subject of an application for contravention or other application to vary or interfere with current arrangements and placement of children if not complied with.
c)The Court must have regard to whether the parties are legally represented and the ability of the parties to follow the proceedings remotely. I am conscious of the difficulties that befell the Court in R & Macdonald; R & Edward Obeid; R & Moses Obeid (No 11) [2020] NSWSC 382. One would hope that they would not befall this Court, although even this telephone callover is bedevilled by loud background noises, generated by who knows what.
d)The Court must consider whether evidence is to be heard. One of the matters which is suggested to obviate against a remote hearing in this case is the requirement for cross-examination and particularly extensive cross-examination at that. In this case, there are allegations of physical assault or abuse of the children by the father. Those allegations are denied. There are allegations raised by the father that the mother is actively interfering with and seeking to undermine, or at the very least not support, his relationship with the children. Those matters cannot be determined without extensive cross-examination which is more difficult by remote hearing and presently precluded as regards any unrepresented party.
e)The Court must have regard to the source of evidence that is to be adduced. There is to be substantial evidence adduced from police and similar agencies. That is subpoenaed material that is sensitive and which, under the Federal Circuit Court Rules, cannot be copied without the leave of the Court. I am conscious of Joint Practice Direction 2 of 2020, which makes clear that whilst material could be photocopied and scanned, that (at point 5) “Photocopy access will not be made to documents including a child welfare record, criminal record, medical records, or police records”.
f)Of course, leave can be given to photocopy such records. However, I am not prepared to do so at this time without notice to the agencies that have produced the material that such an order is contemplated (and so that they might object and be heard should they wish to) and would be reluctant to grant such leave to a self-represented party. It is an important consideration that such records not be placed in the public domain, particularly when those who produce them have the assurance of the Court’s rules that it will not occur.
All of those difficulties are abundant in this case. It would continue on, however, with:
a)The technical and practical problems that might arise in using an Audio Visual platform;
b)The experience and confidence of both the Court, the practitioners and the parties in doing so; and
c)Whether there are safe alternatives. At this point in history, there are not. Face-to-face hearings simply cannot occur.
All of those factors are significantly relevant and, as their Honours concluded in Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ at paragraph 55:
The concept of fairness and the need for a lay party to “engage” in the process includes the ability of that person to follow and to understand what transpires at a court hearing at least to an adequate degree and then to be able to instruct their lawyers adequately and in a timely manner.
In this case, what is at stake is the welfare of children, a factor which, of itself, their Honours comprising the Court of Appeal of England and Wales discussed at length as potentially obviating against the use of AV or remote hearings in most circumstances.
The urgency that I have already referred to is a somewhat compelling issue. It warrants and demands that this matter be heard as soon as practicable, even though it is not presently ready for hearing. As a differently constituted bench of the Appeal Court of England and Wales opined in Re B (Children)(Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, paragraph 4:
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.
That is prescient to the present issue. What is at stake here, although it impacts upon the children’s rights, not any perceived or existent right of the parents, is a change of placement. The father seeks that the children pass to his immediate care. The mother seeks that the children continue in her care, and practice a limited relationship with the father.
I am very conscious of the difficulties reflected above. The matter is, at present, not ready, although it may well be able to be made ready in a fairly short space of time. But what cannot be addressed is the reality that:
a)There are three, possibly four, experts who will have prepared reports in these proceedings – why it is unclear – and some or all of them will be required for cross-examination in addition to the parties;
b)The parties will be required to sit in a remote location by themselves whilst cross-examination is conducted by their legal representatives who will have only recently have been appointed.
That of itself is sufficiently problematic, to my mind, to obviate against the hearing proceeding.
There are then the added difficulties of the parties being cross-examined and documents being put to them, when there is the possibility that they are sensitive materials, which may or may not be safely placed in the public domain.
Most importantly, fundamentally, the issue of procedural justice and perception thereof obviates against a remote hearing in this trial. I am not satisfied that these parties could, one or both, be afforded sufficient due process to feel that they had been fully and properly listened to and heard. If one moves forward, for the moment, without suggesting that the outcome of this case is determined or even clearly suggested,[3] it must be observed that if the father were successful, and, at the conclusion of a three – or possibly more – day Audio Visual hearing, orders were made for the mother to deliver up the children to his care, when she has sat mutely and silently before a computer for that entire period of time, it is impossible, to my mind, to believe that she would feel that she has participated in the decision or been heard. Similarly, if the father’s practice of relationship were significantly curtailed, the same would apply.
[3] None of the evidence has been read and considered; it is merely the positions the parties advance.
I am conscious of the discussion of Perram J in Capic & Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486, particularly paragraphs 23 and 25, wherein his Honour opined:
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 (save urgent cases) and then begin a process of relisting my entire docket …[and at paragraph 25, His Honour concluding] Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will.
His Honour observed that these are “not ordinary circumstances”, and thus determined to proceed. I do not cavil for one moment with a single word that has fallen from His Honour. However, in this case, I am satisfied that the hearing cannot proceed remotely, in light of the content of the proceedings. What is at stake in these proceedings are the children’s best interests. Those interests are served by expeditious hearing but potentially prejudiced by the mode of remote hearing available.
Ultimately, and as discussed by Fullerton J, the reality is that it is the Court’s obligation to administer justice and to provide a fair trial so that both parties feel it has been so.
For those reasons, I propose to make orders as follows:
Once face-to-face hearings are allowed the matter will proceed, face to face, as quickly as it can. I am certainly persuaded that the matter needs to be heard promptly but it is how it needs to be heard.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 16 June 2020