MOLLOY & MOLLOY

[2020] FamCA 1016

FAMILY COURT OF AUSTRALIA

MOLLOY & MOLLOY [2020] FamCA 1016

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the Independent Children’s Lawyer seeks an adjournment of the trial, listed to commence in June, as she contends that it is not an appropriate matter to be heard via a video-conferencing platform – Where the court is currently unable to hear trials in person due to the current social distancing requirements implemented in response to the COVID-19 pandemic – Where, notwithstanding that hearing a trial by way of video-conference is not the perfect or ideal way, it is an adequate and reasonable way to determine trials, including difficult, complex and high conflict parenting cases – Where the trial will proceed on the dates listed and if social distancing requirements have not been lifted, the trial will proceed by way of video-conference.

Family Law Act 1975 (Cth)

APPLICANT: Mr Molloy

RESPONDENT: Ms Molloy

INDEPENDENT CHILDREN’S LAWYER: Justine Lilley

FILE NUMBER: BRC 8948 of 2016

DATE DELIVERED: 17 April 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 17 April 2020

REPRESENTATION

THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Ms Minnery

SOLICITOR FOR THE RESPONDENT: Phillips Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lilley

Legal Aid Queensland

Orders

1. That leave is granted to the Independent Children’s Lawyer, the solicitors for the Respondent mother, and to the Applicant father himself to inspect and cause photocopies to be made, if required, of all documents produced under subpoena to date for which leave to do so has not previously been given, with any copies so made and retained by the Applicant father to be destroyed within 24 hours of the finalisation of the proceedings, including any appeals in the proceedings, or within 24 hours of the expiration of any relevant appeal periods during which no appeal is filed by any of the parties, whichever is the earlier.

2. That leave is granted to the Independent Children’s Lawyer to provide to the Family Report Writer, Ms B, any documents she considers the Family Report Writer should be provided with to assist her in the preparation of her updating family report.

3. That the Independent Children’s Lawyer’s oral application to have the trial dates vacated, is dismissed.

4. That in the event that the social distancing restrictions on the hearing of trials physically in the courtroom have not been lifted by the first day of trial, the trial shall proceed by way of videoconferencing and:

   (a) pursuant to sections 102C, 102D and 102E of the Family Law Act 1975 (Cth) (“the Act”) and rule 11.01 of the Family Law Rules 2004 (“the Rules”), testimony, appearances and submissions shall be given by video link;

   (b) pursuant to section 102J of the Act, a person who is to give testimony by video link be permitted to swear an oath or make an affirmation either:

   (i)     by video link, audio link or other appropriate means; or

   (ii) through the oath or affirmation being administered by another person who is present at the place the person giving the testimony is located;

   (c) pursuant to rule 16.04 of the Rules:

   (i)each of the parties shall ensure, in respect of all documents exhibited to the affidavits of evidence upon which they rely and in respect of any other documents they intend to seek to put to a witness during cross-examination at the trial whether they intend to tender such documents into evidence as exhibits at the trial or not, that they:

   (A) lodge with the Court hard copies of such documents that are indexed and paginated by the close of the business day preceding the start of the trial;

   (B) provide copies of such documents in electronic form, indexed and paginated, to the Court through the Judge’s Associate by the close of the business day preceding the start of the trial;

   (C) serve on each of the other parties indexed and paginated hard copies of those documents and also indexed and paginated electronic copies of those documents at the time that affidavits to which the documents are exhibited are to be served on the other parties and, in respect of those other documents that are intended to be put to a witness during cross-examination at the trial whether they intend to tender such documents into evidence as exhibits at the trial or not, by the close of the business day preceding the start of the trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Molloy & Molloy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8948 of 2016

Mr Molloy  

Applicant

And

Ms Molloy  

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This matter, bears a 2016 date, which tells me that it was commenced by the applicant, Mr Molloy  (as I understand him to be the applicant), in 2016 in either this court or the Federal Circuit Court.  It pertains to the parenting arrangements in respect of four children of Mr Molloy ’s marriage to the respondent mother, Ms Molloy , namely the children, X who is 15 approaching 16, Y who is 12 approaching 13, Z who is 10 approaching 11, and W who is 8.  They have been the subject of this parenting dispute now for four years. 

2. On 12 December 2019, without any foresight or knowledge that the Coronavirus known as COVID-19 was about to engulf the entire planet in pandemic proportions, this matter was listed for a seven day trial commencing on Monday, 8 June 2020.  It was listed for that length of time, albeit simply a parenting trial and not involving any matters of property adjustment, on the basis of the representations made by the parties on that day that were put into the form of a trial plan that listed witnesses and potential cross-examination time that clearly took the matter to seven days.  Though at the time I expressed some surprise and continue to do so about the fact that it is a seven day trial where the parameters are, as I am told by the parties, whether the children continue to live with their mother and spend alternative weekends with their father or whether on the father’s case they go to live with him. As was pointed out by the ICL, the father’s position is that they only have supervised time with their mother thereafter. 

3. I listed it for those seven days. Given the fact that the mandatory prohibition on cross-examination of the mother by the father who has to this point in time, or for all of this time been representing himself, applies pursuant to s 102NA of the Family Law Act, I made appropriate orders and directions referring him to the Legal Aid Office for consideration in respect of their program for provision of legal assistance to people to whom the prohibition applies.  That was done in December, I think.  If not then, at least by March, when the matter was back before me on 4 March this year. 

4. The matter was then listed again for mention today at the application of the Independent Children’s Lawyer, Ms Lilley, for discussion of and/or consideration of whether or not the trial would still go ahead on the seven days in June having regard to the fact that this country and the world has now been overtaken by this coronavirus pandemic causing the entirety of society and the economy effectively to be virtually closed down and serious personal and social distancing regulations and measures to be imposed. These restrictions have impacted upon this Court’s discharge of its responsibilities in its normal day to day manner. When the matter came before me this morning, the ICL, Ms Lilley, admirably articulated her position that the seven days currently listed should be vacated and the matter should be adjourned to a date to be fixed. 

5. Principally, Ms Lilley’s argument was one arising out of what she perceives to be the difficulties and disadvantages pertaining to the case caused by the Coronavirus restrictions on the way in which the case is to be heard and conducted, not only in terms of the trial itself but also in terms of the preparation of an updated family report by the family consultant from the Court’s Child Dispute Services, Ms B. 

6. I am told that Ms B has made arrangements for interviews to take place to prepare her updated family report in early May and that the arrangements in respect of that are also impacted by the social distancing requirements brought about by the Coronavirus such that the interviews of the parties and the children by Ms B for the preparation of the report are to be conducted either by telephone or through a video platform at the discretion of Ms B. 

7. In essence the ICL submitted that it would not be appropriate in all the circumstances of that case to proceed to conduct the trial and to conduct the family report interview and the trial via electronic digital means.  The position was admirably put by Ms Lilley who conscientiously and professionally advanced submissions to the court in support of that position. Then her position was supported by counsel for the mother who made submissions in effect under seven various heads that she outlined quite comprehensively. I then heard from the father. Although I understood him to be a touch ambivalent about the position, he ultimately confirmed that it is his preference to proceed with the trial on the days that it is currently listed for, which is some six weeks from today, even if that has to proceed by way of videoconferencing platform such as Microsoft Teams that we are currently using

8. The hearing of this matter commenced at 10.00 am this morning and it is now 12.25 pm, so I have given the parties nearly two and half hours to articulate their cases, much of that time of course I respectfully acknowledge was taken up by exchanges between us with me interposing my views and responses in respect of many of the arguments that they put.  If it is not already clear from the exchanges that I made, I am not minded to adjourn the trial and to vacate the dates that are currently set down. 

9. Those seven days were allocated to this matter in December of last year and they were allocated to this matter knowing that the parental conflict that has been going on between these parties is high, that it has been going on for a long time and that it is in the children’s best interests to have the proceedings that the parents are involved in concluded as quickly as possible. 

10. Ideally, trials in this court should, as they generally always have been, take place with the parties physically in the courtroom, with their solicitors and their barristers (if they have them) at the bar table in front of the judge.  Indeed if you put the proposition to family lawyers or even other lawyers or judges and courts, and people of this country only several months ago, that within a few months the country would be in virtual lockdown, the economy would have been put into hibernation, it would cost the taxpayers of the country several hundred billion dollars or something thereabouts, and that courts would be hearing cases via video platforms everyone would have scoffed at you and laughed, one would think. 

11. Nevertheless, that is what has happened and this court charged with the responsibility of hearing and determining disputes that are brought to it for determination by parents in respect of their unresolved and highly conflictual parenting and co-parenting arrangements is still working hard to discharge the statutory responsibility that it has.  This Court, as well as the FCC and the Federal Court of Australia as well as other courts that are within the state jurisdictions, has embraced the idea of continuing to hear cases via videoconferencing platforms. 

12. I acknowledge and respect the submissions made by Ms Lilley and by Ms Minnery for the mother that it is not ideal that there will be some disadvantages to everyone involved in the case, potentially even to the court, by proceeding with the matter via videolink. They admirably put a number of arguments in respect of that to me.  However, as I pointed out during the exchanges between us, I have the advantage of already having part-heard over five days a matter via Microsoft Teams and am satisfied notwithstanding that it is not the perfect or ideal way in which to hear a trial, that it is an adequate and reasonable way to hear and determine trials including difficult, complex and high conflict parenting cases in what is now this most desperate of situations that the nation, the citizens of this nation, and the courts who try to dispense justice and determine disputes between those citizens, are faced with. 

13. In all the circumstances, I decline to adjourn the matter. Many of the reasons for that would be obvious from the matters that I have already said in exchange between us this morning and I incorporate all of those into these reasons that I give now in rejecting the application for adjournment and dismissing it. 

14. The trial will proceed on the dates that it is currently listed for and if it is that the restrictions have not been lifted by then, allowing the parties to come into the courtroom, which is indeed hoped for, we will proceed nevertheless via the Microsoft Teams platform. 

15. During the course of the morning, I made some directions about subpoenas.  I also said notice would be given to the subpoena section of the Court. That will be done today.  I also said that notice would be given to the child dispute services section requiring the updated report to be prepared by Friday, 29 May 2020, a whole week before the trial starting, and I will ensure that communication is passed on to the child dispute services section through their director today.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 April 2020.

Associate: 

Date:  30 November 2020