Papoutsis & Chow
[2025] FedCFamC1F 60
•4 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Papoutsis & Chow [2025] FedCFamC1F 60
File number(s): BRC 315 of 2022 Judgment of: HOGAN J Date of judgment: 4 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant made an application for a witness to appear electronically – Where the application was opposed by the mother and the Independent Children’s Lawyer – Where the witness resides 13 hours away – Where there are challenges to the witness’s credit – Where the interests of justice are better served by having the witness make themselves available for cross examination in person during the trial Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 14 Date of hearing: 4 February 2025 Place: Brisbane Solicitor for the Applicant: Ms Moles, Mills Oakley Lawyers Solicitor for the Respondent: Ms Battisson, Murdoch Lawyers Solicitor for the Independent Children's Lawyer: Ms Khushal, Bridges Family Law Specialists ORDERS
BRC 315 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PAPOUTSIS
Applicant
AND: MR CHOW
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
4 FEBRUARY 2025
THE COURT ORDERS BY CONSENT THAT:
1.The time for compliance pursuant to paragraph 9 of the Orders made 15 October 2024 regarding an affidavit in reply be extended to by no later than 4.00 pm on 17 February 2025 for the Respondent.
2.The time for compliance pursuant to paragraphs 19 and 20 of the Orders made 15 October 2024 regarding objections to evidence be extended to:
(a)by no later than 4.00 pm on 19 February 2025 a list of objections to evidence; and
(b)by no later than 4.00 pm on 20 February 2025 a reply to any objections to evidence served by the other parties.
3.The time for compliance pursuant to paragraph 14 of the Orders dated 15 October 2024 regarding the Independent Children’s Lawyer list of documents intended to form part of the bundle of documents to be tendered by the Independent Children’s Lawyer at trial be extended to by no later than 4.00 pm on 10 February 2025.
4.The time for compliance pursuant to paragraph 15 of the Orders dated 15 October 2024 regarding the Applicant and the Respondent providing to the Independent Children’s Lawyer a list of any additional documents be extended to by no later than 4.00 pm on 14 February 2025.
5.The time for compliance pursuant to paragraph 16 of the Orders dated 15 October 2024 regarding the Independent Children’s Lawyer providing to the parties and the Court the bundle of documents intended to be relied upon by the Independent Children’s Lawyer at trial be extended to by no later than 4.00 pm on 19 February 2025.
6.To the extent that documents have been produced pursuant to subpoenas issued in these proceedings and leave has not been given to the Independent Children’s Lawyer and/or the parties’ legal representatives (including Counsel) to inspect and copy such documents, that leave is now granted:
(a)including (but not limited to):
(i)documents produced pursuant to Rule 6.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by the District Court of New South Wales (Court ID …).
(ii)documents (if any) produced pursuant to the subpoena to the New South Wales Police Force (Court ID …).
(b)including to staff employed by the parties’ legal representatives (including Counsel) and the Independent Children’s Lawyer;
(c)except for any electronic recordings of the child, X; and
(d)on the conditions that:
(i)the parties’ legal representatives (including Counsel) are restrained from providing a copy of the documents in these proceedings or disclosing their contents to any other person, except for any single expert witness in these proceedings, without an Order of the Court; and
(ii)upon finalisation of these proceedings, the parties’ legal representatives (including Counsel) are to destroy, or cause to be destroyed, the documents including any copies provided to any single expert witness, and including satisfying themselves that the subpoenaed documents have been destroyed or permanently deleted from any storage or retrieval system.
7.The Respondent’s application seeking that his witness, Mr B, attend trial by telephone or video communication be dismissed.
8.The Independent Children’s Lawyer has leave for the following witnesses to give evidence and be cross-examined by video-link through Microsoft Teams at the final hearing of this matter:
(a)Dr C, Psychiatrist; and
(b)Ms D, E Services.
9.Such leave is conditional upon each witness being informed that they are:
(a)to be in a private place when they are called to give evidence; and
(b)to have with them a copy of their affidavit/s or report/s; and
(c)to have with them any notes that may be in their possession that relate to the proceedings; and
(d)have available to them a method by which they can receive, electronically, any documentation that any party may wish them to be shown during the course of cross-examination.
IT IS NOTED BY CONSENT THAT:
A.On 24 January 2025, the Respondent filed an application seeking that his witness Mr B, attend trial by telephone or video communication. The Applicant opposes Mr B giving evidence electronically.
B.The Applicant and the Independent Children’s Lawyer agree for Mr B to be interposed for cross-examination in person on an agreed time and date at the final hearing commencing on 24 February 2025.
C.Subject to the discretion of the Court, the Applicant and the Respondent do not oppose the Independent Children’s Lawyer’s witnesses, Dr C and Ms D appearing at trial by electronic means.
D.Pursuant to paragraph 13 of the Orders made 15 October 2024, the Independent Children’s Lawyer intends to issue the following forthwith:
(a)Subpoena to produce documents to:
(i)The Commissioner of Police, New South Wales Police Force for all material from 2 May 2024 to date held in relation to Mr Chow; and
(ii)F Medical Centre for all material from 1 January 2022 to date held in relation to Mr Chow;
upon documents being produced pursuant to those subpoenas, the Judicial Registrar of this Honourable Court is to be directed to paragraph 6 of these Orders in terms of leave being granted to the parties’ legal representatives (including Counsel) and the Independent Children’s Lawyer to inspect and copy any documents.
(b)Subpoena to give evidence to:
(i)Dr G, H Medical Centre though formerly at J Medical Centre;
(ii)Dr K, L Health Service; and
(iii)Ms M, Child Safety Officer of the Department of Families, Seniors, Disability Services and Child Safety.
E.Paragraph 6 of these Orders is made to enable the parties’ legal representatives (including Counsel), the Independent Children’s Lawyer and any single expert witness to prepare for the final hearing in this matter, in the interests of justice being served and the Court being in the best possible position to make findings at the final hearing.
AND IT IS NOTED THAT:
F.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
G.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Papoutsis & Chow has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
This matter is listed for final hearing before me commencing on 24 February 2025 for five days.
In the course of the pre-trial appearance this morning, I have been asked to deal with a Request to attend by Electronic Communication filed on behalf of the Respondent father in relation to a witness called in his case, Mr B; he sought that person be made available for cross‑examination via electronic means at the upcoming trial.
That application is opposed by both the mother and the Independent Children's Lawyer.
In summary, the basis of the opposition is that, given the nature of Mr B’s evidence, which raises some issues in relation to one of the issues in this trial – namely, whether the mother poses an unacceptable risk to the child arising from psychological issues and/or conduct (in an attempt to summarise that on as high a level as I can) – it would be preferable, given that Mr B is not a professional witness in the sense that he is not a person giving expert evidence in this matter, for him to be made available to be cross-examined in person; presumably, I infer, so that the Court will be in the best position possible to determine any issues as to credit and to resolve those issues in respect of which his evidence and the evidence of the mother differ.
The basis for the application is succinctly set out in the Request to attend by Electronic Communication and adverted to in the affidavit of Mr B which was sealed on 20 December 2024.
Ms Battisson, who appears on behalf of the Respondent father, made various submissions in support of the request. These included that: given that Mr B lives some 13 hours’ drive from Brisbane, the impost on him and his business as a professional if required to travel to Brisbane; I presume, by whatever means during the course of the trial; he can make himself available and satisfy any conditions in the sense of being in a private place and having available to him the means to receive documents if an order was made for him to be cross-examined via electronic means.
It was also submitted that, when the matter has previously been before the Court, including when it was previously listed to commence final hearing before Judge Lapthorn – at which time it was transferred to this Court – no objection had been taken on behalf of the mother to Mr B being made available for cross-examination via electronic means.
In opposing the application, Ms Moles, who appears on behalf of the mother (the respondent to the Request) submitted, in essence, that Counsel engaged to conduct the trial on behalf of her client has expressed a preference to be able to cross-examine Mr B in person, in what was described as “the ordinary course”. It was also submitted, in essence, that arrangements could be made as between the parties (including the Independent Children's Lawyer) so as to minimise the impost on at least Mr B’s time if he is required to appear in person to be cross‑examined. For example, it could easily be agreed as between the parties that, irrespective of the place at which the evidence has otherwise reached, Mr B be interposed at a particular time on a particular day and, in that way, it was submitted, he could, in essence, travel from City N to Brisbane and return to City N within the day, albeit that that would, one assumes, require him to fly as between that city and Brisbane.
It was submitted by Ms Moles that Mr B’s evidence includes evidence against her client about important issues and addresses, at least in part, one of the factual findings that it appears the father seeks – namely, as I have already adverted to, the issue of whether the mother poses an unacceptable risk to the child in a psychological or emotional sense. In particular, Ms Moles referred to Mr B’s evidence from paragraph 34 onwards of his affidavit.
Ms Khushal, the Independent Children's Lawyer, made submissions that, given that Mr B’s evidence, as outlined in his affidavit, raised some concerning issues arising from his involvement and interactions with the mother, it was the preference of the Independent Children's Lawyer that he be made available for cross-examination in person rather than via electronic means. Ms Khushal echoed Ms Moles' submissions that arrangements could be made to ensure that the impost on, as I have said, at least Mr B’s time could be minimised by having the parties agree to him being interposed to be cross-examined on a particular day at a particular time.
Whilst I accept that the Rules certainly encourage judges at first instance and judges exercising appellate jurisdiction to make best use of electronic communications that now exist in order to facilitate the timely conduct of trials, I also take into account, in my determination of the application, the importance of the Court being placed in the best position possible to arrive at and determine issues of credit as between witnesses – particularly, it seems to me, in cases in which one of the parents seeks (as it seems it is sought) either a positive finding of unacceptable risk or, at the very least, to advance a case seeking significant orders that would, if made, see a change to the child's current living arrangements.
I accept that it is highly likely that Mr B could be in a private place and that he could be made available for cross-examination via Teams, as Ms Battisson has submitted has previously occurred. However, given the challenges to credit and the significant issues that I will be asked to determine at the trial (and even noting the suggestion that the maximum use be made of electronic means of communication) I am, on balance, more persuaded that the interests of justice will be better served when considered in a long-term sense by having Mr B make himself available for cross-examination in person during the course of the trial than they will be by having him be made available for cross-examination via electronic means.
That conclusion rests upon my acceptance of the submission that arrangements can be made –and will be made as between the legal representatives – for Mr B to attend in Brisbane on one day only and that he not be required to linger outside the Court simply awaiting being called as that would not be something that would be at all acceptable. I have no doubt that the legal representatives will be able to ensure that occurs.
For those short reasons, then, I decline to make an order permitting the father to make Mr B available for cross-examination via electronic means if he is required to be cross-examined.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 11 February 2025
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