Macarthur & Macarthur (No 4)
[2023] FedCFamC1F 852
•9 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Macarthur & Macarthur (No 4) [2023] FedCFamC1F 852
File number(s): BRC 6154 of 2020 Judgment of: CHRISTIE J Date of judgment: 9 October 2023 Catchwords: FAMILY LAW – EX TEMPORE – INTERIM HEARING – Application to attend the final hearing by electronic communication – Where the applicant lives in the United States of America – Where the respondent opposes the application to appear electronically – Where the respondent has offered to use joint monies to fund the applicant’s travel to appear at the final hearing in-person – Where the applicant does not accept the offer because of her current mental health– Where the applicant does not accept the offer because she fears the respondent and alleges family violence – Where the applicant has provided some evidence of the treatment of her mental health – Where the respondent believes that holding the final hearing electronically would cause him prejudice due to the applicant not being adequately challenged – Applicant’s application granted. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.16 Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 9 October 2023 Place: Sydney For the Applicant: Litigant in person For the Respondent: Litigant in person ORDERS
BRC 6154 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MACARTHUR
Applicant
AND: MR MACARTHUR
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
9 OCTOBER 2023
THE COURT ORDERS THAT:
1.Order 4 of Orders made on 1 November 2022 is varied to provide that the applicant file and serve any Amended Initiating Application on or before 4.00 pm on 13 October 2023.
2.Order 5 of Orders made on 1 November 2022 is varied to provide that the respondent file and serve any Amended Response on or before 4.00 pm on 18 October 2023.
3.Order 6 of Orders made on 1 November 2022 is varied to provide that the parties file and serve documents set out in that Order (namely an updated Financial Statement, a single consolidated trial affidavit by that party, a single affidavit of each witness, including any expert witness, subject to the Federal Circuit and Family Court of Australia (Family Law) 2021 (Cth) or with leave upon which they intend to rely at trial and an undertaking as to disclosure) on or before 4.00 pm on 24 October 2023.
4.Order 15 of Orders made on 1 November 2022 is varied to provide that each party is to file and serve a Case Outline on or before 4.00 pm on 26 October 2023.
5.Should the applicant intend to pursue her interim application for spousal maintenance remitted by the Appeal Division to the trial judge, she provide written notice in respect of same including setting out with particularity the orders sought by 13 October 2023.
6.Leave is granted for the applicant to appear at the final hearing by electronic communication.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
APPLICATION FOR ELECTRONIC COMMUNICATION
Before me today is an application for the applicant to attend by electronic communication the final hearing which is commences on 31 October 2023. As is required by the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”), the respondent filed a request to attend by electronic communication but did not obtain the consent of the respondent. The respondent does not consent to the application.
The applicant raised three issues which she said preclude her from attending the hearing in person. They were costs, health and fear of the respondent.
The respondent for his part said he would be prejudiced by the failure of the applicant to attend because in his mind she would not be challenged sufficiently if the hearing were to occur by electronic communication. The respondent indicated that he had offered to provide the applicant with funds to facilitate her attendance in person at the hearing and further that he offered that his mother would fund the cost of their child to accompany her.
I was told in submissions today by the applicant that she is not in a position to accept that offer for two reasons: because she did not believe that the parties’ funds should be spent on this particular expense and secondly because the parties’ child would again miss celebrating Halloween with the mother (the mother having missed celebrating Halloween with her daughter last year).
If it were just a question of the cost, then I would have fairly little hesitation in requiring the parties to apply their own monies to the cost of the mother attending. However, I do take into account matters that I am required to take into account under Rule 15.16 of the Rules:
15.16 Attendance by electronic communication
(1) A party may request permission to do any of the following things by electronic communication at a court event:
(a) attend;
(b) make a submission;
(c) give evidence;
(d) adduce evidence from a witness.
(2) Before making a request, the party must ask any other party whether the other party agrees, or objects, to the use of electronic communication for the purpose proposed by the party.
(3) A request must:
(a) be in writing; and
(b)be made at least 5 business days before the date fixed for the court event, or if the court event is a trial, at least 28 days before the date fixed for the trial to start; and
(c)set out the facts relied on in support of the request; and
(d)set out details of the notice in relation to the request that has been given to any other party; and
(e)state whether any other party agrees or objects to the request; and
(f)state the expense to be incurred by using the electronic communication.
(4) The facts referred to in paragraph (3)(c) above must include the following:
(a) what the party seeks permission to do by electronic communication;
(b) the kind of electronic communication to be used;
(c)if the party proposes to give evidence, make a submission or adduce evidence from a witness by electronic communication—the place from which the party proposes to give or adduce the evidence, or make the submission;
(d) the facilities at the place referred to in paragraph (4)(c) that will enable all eligible persons present in that place to see or hear each eligible person in the place where the court is sitting;
(e)if the party seeks to adduce evidence from a witness by electronic communication:
(i) whether an affidavit by the witness has been filed; and
(ii)whether the party seeks permission for the witness to give oral evidence; and
(iii)the relevance of the evidence to the issues; and
(iv)whether the witness is an expert witness; and
(v)the name, address and occupation of any person who is to be present when the evidence is given, unless disclosing this address would compromise the person’s safety; and
(vi)if the party proposes to refer the witness to a document—whether the document has been filed and whether the witness will have a copy of the document; and
(vii)whether an interpreter is required and, if so, what arrangements are to be made;
(f) the expense of using the electronic communication, including any expense to the court, and the party’s proposals for paying those expenses;
(g) whether the other parties object to the use of electronic communication for the purpose specified in the request and, if so, the reason for the objection;
(h)if the request relates to evidence to be adduced from a witness in a foreign country (as defined by subrule 15.17(2))—the matters required to be addressed under rule 15.17;
(i) if the request relates to a remote appearance from New Zealand—the matters required to be addressed under Division 2 of Part 6 of the Trans Tasman Proceedings Act 2010.
(5) A request may be considered in chambers, on the documents.
(6)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;
(g)the nature of the hearing.
(7) If the court grants the request, the court may:
(a) order a party to pay the expense of using the electronic communication; or
(b)apportion the expense between the parties.
(8) If a request is granted, the party who made the request must immediately give written notice to the other parties.
I am obliged to take into account the distance between the applicant’s residence and the Court. The applicant resides and has for some time resided in the United States of America (“USA”). On any view of events it takes at least a day to travel by aeroplane between the USA and the Court.
The next issue I am required to take into consideration is any difficulty in any party attending because of illness or disability. The applicant relied on an affidavit today which annexed some redacted documents concerning her health. I am unable to make concluded findings about whether or not the applicant is suffering from an illness or disability but on the face of these documents it appears that she has had some substantial medical intervention including in May and June of this year and at least on her own report suffers from anxiety, depression and on her own report from Post Traumatic Stress Disorder all being matters in respect of which it appear she is receiving assistance.
As I said, it will be a matter for another day as to whether or not that evidence in due course establishes that she does indeed suffer from these things but taken at their face they would seem to indicate that travel would impose a burden on her at this time.
The next issue to consider is the expense associated with attending. It would be the expense of aeroplane tickets both for the mother and for the parties’ child and for accommodation. In contrast, the expense to be incurred when using electronic communication is minimal.
One of the other matters I am obliged to consider are any concerns about security including family violence and intimidation. Whilst the mother, in general terms, indicates she is fearful of attending she provides no specifics in respect of that. The father for his part denies any conduct on his part which would have the effect of causing fear in the applicant. I am unable to find that there has been family violence on the evidence before me.
I take into account that the respondent objects to the request and I understand that he thinks he will be prejudiced. One of the things that the COVID era did make clear to courts was that while electronic communication creates considerable logistic difficulties in terms of tendering and showing documents to witnesses, it does not, in the experience of the court, impact on the capacity to assess whether somebody is telling the truth, to assess their veracity or to allow for cross-examination in the ordinary course. Electronic communication provides an opportunity in the same way as face-to-face cross-examination to test the evidence and so while I accept that the respondent feels that he may be prejudiced I think that might be more illusory than real.
On balance it is my view that it is necessary having regard to the history of this matter to have the hearing on the dates scheduled. I could not be confident that if the application for electronic communication were refused, the hearing would actually occur. It is in the interests of the parties and the interests of justice and of all the other people waiting in the queue for this matter to be heard and determined on a final basis and so I grant the application for electronic communication.
PROCEDURAL MATTERS FOR TRIAL
I need to revisit the matters in my original orders setting this matter down for hearing. I made Orders on 1 November 2022 for the parties to file material in preparation for the trial. I now need to change those directions because the mother has failed to comply with the directions to file any Amended Initiating Application and it seems plain from the submissions today that she is not in a position to comply with the filing date which is now imminent. Accordingly, I intend to make directions at the end of these reasons altering the trial directions which were made on 1 November 2022.
ISSUES IN DISPUTE AT FINAL HEARING
It is important in preparing for this hearing to record some of the matters which are agreed and some of the matters which are in dispute for the purpose of trying to clarify the issues which will be the issues for trial.
I was informed today that following the sale of the parties’ property in Australia there is the approximate sum of $141,000 sitting in a trust account. The parties agree that this is an approximate figure and they will be in a position to provide a precise figure at the trial.
There is a dispute about the Macarthur Family Superannuation Fund. The Macarthur Family Superannuation Fund owns a property at Q Street, Suburb R. That property has been valued for the purpose of these proceedings at $550,000 and if there remains a dispute in that value, the respondent will file an affidavit by the valuer. In addition, that fund owns $435 in cryptocurrency. The Suburb R property is subject to a mortgage in the approximate sum of $209,000. There is a dispute as between the parties concerning the beneficial ownership of the funds in the self managed superannuation fund. The applicant for her part said she had a member balance in the account. The respondent for his part said that the member balances in the account have always been in his name. This matter will need to be determined at trial.
The next issue which is controversial as between the parties is the ownership of two properties in the United States: S Street, City T, State U (“S Street Property”) and V Street, City T, State U (“V Street Property”). Both of these properties the wife contends are owned by her parents. The husband said that the V Street Property was purchased through W LLC in 2017-2018 and in 2019 was transferred into the name of the applicant’s mother. The applicant said that both of the properties are owned in the name of the LLC. The parties agree that the S Street Property was in the process of being purchased at the time their relationship ended.
There are other issues about the historical treatment of proceeds of sale of properties in Australia which will be the subject of evidence before the Court.
The issue of the wife’s health, if it remains an issue in dispute at the hearing, will need to be the subject of admissible evidence.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 9 October 2023
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