Newberry and Newberry

[2013] FamCA 421

FAMILY COURT OF AUSTRALIA

NEWBERRY & NEWBERRY [2013] FamCA 421

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – Leave to give evidence by video link.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Newberry

RESPONDENT: Mr Newberry

INDEPENDENT CHILDREN’S LAWYER: Ms Khushal

FILE NUMBER: BRC 11190 of 2011

DATE DELIVERED: 28 May 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 28 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMillan SC with her Mr Northcott

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

COUNSEL FOR THE RESPONDENT: Mr Shoebridge

SOLICITOR FOR THE RESPONDENT: Lillas & Loel Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYERS:	Mr McGregor
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYERS:	Bridges Family Law Specialists

Orders

IT IS ORDERED

1. That pursuant to rule 16.05 of the Family Law Rules 2004 (Cth) the witness Ms E be permitted to give evidence by video link from Washington in the United States of America.

2. That pursuant to rule 16.05 of the Family Law Rules 2004 (Cth) the witness Mr E be permitted to give evidence by video link from Washington in the United States of America.

3. That pursuant to rule 16.05 of the Family Law Rules 2004 (Cth) the witness Mr TK be permitted to give evidence by video link from Washington in the United States of America.

IT IS FURTHER ORDERED

1. That in the event Counsel appearing for the Independent Children’s Lawyer or Counsel appearing for the Father require any of the witnesses, Ms E, Mr E or Mr TK, to have documents before them to be identified during cross-examination, the Mother is to be responsible for the costs of forwarding such documents by courier to the relevant witness.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11190 of 2011

Ms Newberry

Applicant

And

Mr Newberry

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application before me is an application that three witnesses in the Mother’s case be permitted to give evidence by electronic means, namely via video link. 

2. The relevant rule, rule 16.05 of the Family Law Rules 2004 provides for such applications to be made at least 28 days before the trial. To similar effect, an Order was made by Registrar Brooks on 5 December 2012 expressly providing that the parties, 28 days prior to the commencement of the trial, file any applications under rule 16.05 for the attendance of any witness, other than experts, by electronic means. There has been no compliance by the Mother either with the relevant rule nor with the Order referred to.

3. When initially foreshadowed, the application was to the effect that the subject witnesses might provide their evidence by way of telephone.  In the result, the application is formulated on the basis that the witnesses, if permitted, will give evidence via video link. 

4. The evidence each of those witnesses seeks to provide, in part, concerns a central allegation in the proceedings before me, namely whether or not the Father has perpetrated any act of sexual abuse in respect of the Mother’s adoptive sister, Y.  That obviously is a central aspect to the case advanced by the Mother in terms of her asserting a case to the effect that the Court should make a positive finding that the Father poses an unacceptable risk of sexual abuse to the children the subject of these proceedings. In that context, obviously, each of these witnesses is crucially relevant and the evidence they potentially provide, likewise, is crucial. 

5. On the undertaking of the Mother’s solicitor to file properly sworn affidavits from each of the subject witnesses, the evidence before me in support of the application is to the effect that, in respect of the two lay witnesses, the Mother’s parents, they do not have the funds to fly from the United States to Australia for the purpose of this trial. 

6. In respect of the third witness, Mr TK, said to be a police officer in the United States, separately there are reasons provided by him for his inability to attend, including that he does not have the funds to fly to Australia and his commitments of his employment would prevent him from doing so, as would his familial commitments. 

7. In the end, these are proceedings concerning the best interests of the children, the subject of them.  It seems to me that in circumstances where there is no choice, so far as this central evidence being received is concerned, but to allow the evidence to be given by video, the application ought be acceded to. 

8. I make it clear that it is the application that is being granted, that is, that the witnesses give evidence by video link.  That does not mean that any subsequent application to the effect that there is no video link available means that the Court will necessarily grant leave for the witnesses, or any of these witnesses, to give evidence by way of telephone. 

9. I am satisfied that, whilst it is normally undesirable for witnesses of this type not to be present in person to give evidence, in the circumstances, the balance of the interests of justice and, in particular, the best interests of the children, the subject of these proceedings, dictates in favour of granting the leave which is sought. 

10. I therefore make Orders subject to the undertaking being complied with referred to in terms of the application in a case filed today. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 28 May 2013.

Associate: 

Date:  3 June 2013