Matthews & Norris
[2023] FedCFamC1F 961
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Matthews & Norris [2023] FedCFamC1F 961
File number(s): NCC 2226 of 2015 Judgment of: JOHNS J Date of judgment: 20 October 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application for s 102NA order – where the wife seeks an order pursuant to s 102NA(1)(c)(iv) – where the wife alleges she has been subject to family violence by the husband – where there is no current intervention order in place – where there is no evidence adduced of any family violence incidents between the parties after 2015 – where the parties do not live in the same country – application dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – application to attend final hearing electronically – where the wife resides in New Zealand and seeks to attend the final hearing electronically – where the husband opposes the application – where the wife claims she will incur significant travel and childcare costs if she were to attend in person – where no evidence of such costs was adduced – where the husband submits the Court can better assess the veracity of evidence if both parties attend in person – application dismissed
Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 20 October 2023 Place: Melbourne The Applicant: Litigant in Person Solicitor for the Respondent: Mr Do of Barry Nilsson Lawyers ORDERS
NCC 2226 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MATTHEWS
Applicant
AND: MS NORRIS
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1.The oral application made on 28 August 2023 on behalf of the wife for an order pursuant to s 102NA be dismissed.
2.The wife’s Request to Attend by Electronic Communication filed 20 October 2023 be dismissed.
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 Matthews & Norris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
This matter is listed before me today pursuant to orders made by me at a directions hearing conducted on 28 August 2023. On that date, I made orders listing the matter for final hearing before me to commence on 27 May 2024 as a seven-day matter.
At that directions hearing, the wife’s lawyers sought that the Court exercise its discretion, pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”), to require that the provisions of section 102NA apply to the cross-examination in this case. It was submitted at that hearing, and again today, that due to a history of family violence, it was appropriate that the Court exercise its discretion.
As the issue had been raised late in the proceedings, the husband sought the opportunity to consider his position before responding to that application. Accordingly, I made orders listing the matter for further hearing this day. In addition to that issue, the wife's lawyers have filed a Request to Attend by Electronic Communication with respect to the final hearing. That application is opposed by the husband.
This matter has a long history before this Court. The background to the dispute is as follows.
The husband is aged 56 years and is employed as a General Manager. The wife is aged 50 years and described herself as a professional and full-time parent.
The parties commenced cohabitation in 2008. They married in 2009.
Separation occurred in 2014, according to the wife, and in August 2015, according to the husband. The parties divorced in 2018.
There is one child of their relationship, B, who is aged almost 13 years. Final Orders were made in relation to her parenting arrangements on 30 June 2017. The parenting orders provide that the husband have sole parental responsibility for B, and that she live with him. As I understand the position, B spends no time with the wife.
The trial in relation to the parties’ competing property applications was heard before Cleary J in 2019. That hearing culminated in a judgment delivered by Her Honour on 9 July 2020.
An appeal was lodged on behalf of the wife in relation to the final property orders made, and the Full Court, on 3 March 2022, set aside the property orders made by Her Honour, and otherwise remitted the matter for rehearing before another Judge. On 16 August 2023 the matter was allocated to my docket and I made trial directions on 28 August 2023.
As to the application made that the provisions of section 102NA ought to apply to the proceedings, the submissions made on behalf of the wife in support of that position are as follows. She submits that there is a history of family violence between her and the husband and that a final family violence intervention order was made in 2016. That order expired after a period of approximately 12 months.
The foundation for that order was an alleged assault that was said to have been perpetrated by the husband in mid-2015. There was no conviction recorded against the husband in relation to that alleged assault. In addition to that matter, the wife alleges that the family violence was ongoing, and submits that the husband has engaged in stalking behaviour.
The wife was self-represented during the first hearing conducted before Cleary J. She engaged in that trial process and conducted cross-examination and otherwise represented herself throughout that hearing, which was conducted over a period of six days.
The wife currently lives in New Zealand and there is no suggestion that there has been any recent behaviour that would indicate ongoing issues of family violence as between the husband and the wife.
The allegations raised by the wife that the husband has perpetrated family violence against her are denied by the husband.
I have regard to the provisions of section 102NA of the Act. It is evident that the provisions of section 102NA(1)(c)(i) to (iii) inclusive do not apply to these proceedings:-
·There is no conviction recorded against either party in relation to family violence matters;
·There is no current family violence order in place as between the parties to these proceedings; and
·There is no injunction pursuant to sections 68B or section 114 for the personal protection of either party.
The issue that arises is whether the Court ought to exercise its discretion pursuant to subparagraph (iv) to make an order that the requirements of subsection 2 are to apply.
Having regard to the submissions made on behalf of the parties, and further, having regard to the manner in which the previous proceedings have been conducted, I am not persuaded that the discretion ought be exercised in this instance. That view is bolstered in circumstances where it appears that the principal allegation is limited to one incident, which is said to have occurred in 2015, some eight years ago.
There was no conviction recorded in relation to that allegation. Further, there is no suggestion of any behaviour since the parties' separation that would indicate that family violence is an ongoing issue. For those reasons, I am not persuaded that the discretion ought be exercised in this instance.
As to the issue of whether or not the wife ought be permitted to appear electronically at the final hearing, the matters relied upon by her are as follows.
Firstly, that significant costs that will be incurred by her associated with her travel from her home in New Zealand to Melbourne. In her request, she provides estimates as to the costs of return flights and accommodation in Melbourne. She submits that she is likely to incur costs of some $3,350. In addition, she indicates that she will be required to incur costs of taxis, food and other expenses. Of course, were she to remain in New Zealand, she would still incur costs of food and living expenses. She provides no evidence as to her estimate of costs or to support her contentions as to the costs associated with travel.
Secondly, she raises concerns associated with the ongoing care arrangements in respect of her child from another relationship, Z. The wife submits that Z is aged 6 years, and that she is her primary caregiver. She submits that Z’s father is not able to care for Z during the period of the trial. The wife submits that she will likely incur additional expenses associated with childcare arrangements if she is required to travel from New Zealand to Melbourne.
Inevitably, even if the wife were to conduct proceedings from New Zealand, there may well be childcare costs incurred because, the reality is, these proceedings will be conducted during court hours in Melbourne, which do not align with the time in New Zealand, and presumably, Z will require care whilst the wife is conducting her hearing. Accordingly, I am not persuaded that is a relevant consideration.
The wife also raises issues in relation to her health. She alludes to an injury, which impacts her capacity to travel. The wife adduces no medical evidence to support that submission as to her capacity to travel.
The wife also relies upon the fact that the previous trial, conducted before Cleary J was conducted by audio-visual link, and submits that given that history, similar leave ought to be afforded her in this instance.
The husband opposes the application. He submits that the wife has adduced no evidence in relation to her travel costs, or indeed any evidence as to her alleged parlous financial situation. Further, he submits that the wife adduces no evidence as to her alleged childcare issues. Finally, he submits that there is no evidence in relation to her alleged medical issues that support her submission as to her incapacity to travel to Melbourne.
The husband also alleges that there were significant issues when the trial was first conducted before Cleary J arising from the audio-visual links. He submits that there were frequent, what he described as “dropouts” in the electronic communication, that the time differences between the two countries posed difficulties and that much Court time was wasted as a result of those difficulties. He also submitted that the Court will be better placed to assess the veracity of both parties if each is required to give evidence from the witness box in the same court room.
There is much force in the submissions made by the husband. As I have already noted, the wife has not adduced any independent evidence to support her contentions as to the costs of travel, her financial situation, her childcare issues or her alleged medical issues that limit her capacity to travel.
It was submitted on behalf of the wife that she could adduce such evidence. The reality is that this is the wife's application, and it was open to her to file evidence to support her contentions. She did not do so.
There is also much force in the submissions made by the husband as to the challenges that electronic communications pose. The best indicator of this was the wife's position at the commencement of this interim hearing which was conducted electronically; the wife was not present when the hearing commenced due to her apparent difficulties in joining the link.
The reality is this is a case that is listed for seven days. It is a lengthy and difficult matter, and its conduct should not be compromised or disrupted due to the possibility of technical issues arising due to the use of audio-visual links.
Finally, I am satisfied that the submission made as to the challenges a Court has in conducting a hearing where one party is present and the other is giving evidence electronically carry significant weight. It is always challenging to assess witnesses when giving their evidence electronically. It is, in my view, not the preferred manner in which a final hearing should be conducted. It is also a question of fairness as between the parties. Each should endure the same trial process; that is, that they physically attend court and give their evidence in person from the witness box before a Judge.
Having regard to those matters, I am not persuaded that leave ought be granted for the wife to conduct her trial electronically.
Accordingly, I dismiss the wife's application to attend by electronic communication.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 20 October 2023
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