Perkins and Perkins

[2007] FamCA 12

FAMILY COURT OF AUSTRALIA

PERKINS & PERKINS [2007] FamCA 12

FAMILY LAW – EVIDENCE – Videolink - Application to attend by video - Dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Perkins

RESPONDENT: Mrs Perkins

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: DGF 2375 of 2002

DATE DELIVERED: 16 January, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 16 January, 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The husband appeared in person. 

SOLICITOR FOR THE RESPONDENT: No appearance.  Ann E Gambetta & Assoc. DX 13618, Croydon

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms O'Connell

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr Charles Beckwith, DX 931303, Mornington

Orders

1. That the husband’s application to attend the trial (which is listed to commence at 10:00 am. on Monday 22 January, 2007) by telephone, be dismissed.

1. That the costs of the independent children’s lawyer of this day be reserved.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 2375  of 2002

Mr Perkins

Applicant

And

Mrs Perkins

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter was listed today because the husband has sought to attend the trial, by electronic means.  He proposes attendance by telephone.  He is in Queensland.  The wife and the children live in Melbourne, although the children are presently on holiday with the husband.  The trial is presently listed as a primary matter (that is, the first matter) on Monday 22 January, 2007 before Cronin J.  I am hearing this application as I am the list judge next week, but will not be the trial judge.  The husband acts for himself;  the wife is legally represented.

2. The husband filed a request to attend by electronic communication in which he set out his reasons for wanting to attend by telephone.  He said that he had arranged for the children to come to Queensland for holidays with him;  that the court dates kept changing;  that the case had been going on for five years and was, he said, the longest in the history of the court;  and that he had no confidence about booking a flight or doing anything other than following the rules of the court. 

1. On 13 December 2006, becoming aware of this application, I made orders in chambers deeming that document to be an application pursuant to rule 16.08 of the Family Law Act 1975 and directing the filing of an affidavit setting out the facts required by rule 16.08(3). As the husband acts for himself, I also arranged for him to be given a copy of that rule. The husband did forward some documents to the court, but they are copies of his original request and his trial affidavit, the document containing his evidence‑in‑chief. There is thus no evidence of the matters referred to in rule 16.08(3), including details of the cost of the proposed telephone connection, and whether witnesses will have a copy of any document to which the husband wishes to refer them in the trial. I should add that the case involves both parenting and financial issues.

1. Today the husband has repeated the reasons for his request.  He said the case has been going for a long time;  he has had to attend on numerous occasions, when it has not proceeded;  he has had very little help from anyone, save counsel for the independent children's lawyer.  In his view, he needs to attend by phone. 

1. There is no appearance today for the wife.  In those circumstances, I proceed on the basis the wife does not oppose the application.

1. There is provision in the Commonwealth Evidence Act for a party to attend by electronic means.  The party can attend by video or by telephone.  As I tried to explain to the husband, it is unusual for a party to attend the whole of a trial by electronic means.  Even if the party is legally represented, a number of practical problems arise.  Documents may be tendered which the party needs to see.  Subpoenaed documents, held in the registry, may need to be inspected.  Other documents may be called for.  The party in the court room cannot know who else is in the room with the party interstate, or what documents or people that person may be consulting.  These problems are exacerbated where the party is not legally represented.  That said, the Court has the power to make such an order.

1. The Full Court has advocated caution when considering whether to allow evidence to be given by telephone in cases where the credit of the party or witness appearing by phone is subject to attack.  Giving evidence by phone is less satisfactory than giving evidence by video.  The person cannot be seen.  The judge, lawyers and the other party cannot see what the person is doing or looking at. The party on the phone can be subject to distraction, particularly if children are present, and on some telephone lines “call waiting” or other services interrupt the transmission.  Video overcomes some but not all of those problems.  In particular, it does not overcome the fact that a litigant, not physically present in the court room, cannot immediately read and respond to documents put to him or her or adduced into evidence through other witnesses.  Nor can the Court make any assessment of that party’s demeanour.  The costs of attendance by video or telephone can be significant; I cannot say if the husband has considered the cost of an STD call over two days of court hearing or if he has access to computer technology or services with the capacity to substantially reduce costs.

1. Counsel for the independent children's lawyer strongly opposes any such order, and has made it clear that, from the ICL’s perspective, the husband’s credit is very much in issue in the proceedings relating to the children.  Material filed by the wife suggests credit will also be in issue in the financial proceedings, which will almost inevitably involve consideration of documents in the court room.  In my judgment, it is not feasible for a judge to properly conduct this trial, which is estimated to take two days,  with the husband appearing by telephone.  The application will be dismissed. 

1. The trial is due to commence at 10 o'clock on Monday, as the first matter before Cronin J, in the Melbourne registry.  Mr P, you must be here if you want to take part in the trial, and bring with you all documents and other relevant material. 

1. This ruling relates to the husband’s application to attend, give evidence, cross-examine and make submissions by telephone.  I should say that if, for any reason, the husband seeks an adjournment, he will have to arrange for himself or a lawyer to be here to make that application for an adjournment on Monday.  The application determined by me today cannot be re-argued before the trial judge, but any application for an adjournment will be a matter for him.   

I certify that the preceding
10 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Perkins & Perkins