Redington & Freed

[2021] FamCA 238

FAMILY COURT OF AUSTRALIA

Redington & Freed [2021] FamCA 238  

File number(s):

BRC 1388 of 2018

Judgment of:

HOGAN J

Date of judgment:

21 April 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Application by father to participate in the trial or be cross-examined via electronic means – Application declined  

Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 16.05

Number of paragraphs:

20

Date of hearing:

21 April 2021

Place:

Brisbane

Counsel for the Applicant:

Mr Blackah

Solicitor for the Applicant:

Macgregor O’Reilly Nash Solicitors

Solicitor for the Respondent:

Michael Lynch Family Lawyers

Solicitor for the Independent Children's Lawyer:

Stewart Family Law

ORDERS

BRC 1388 of 2018

BETWEEN:

MS REDINGTON

Applicant

AND:

MR FREED

Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	21 APRIL 2021

THE COURT ORDERS THAT:

1.The father’s request for leave to participate in and be cross-examined by electronic means at the final hearing of this matter listed to commence on 27 April 2021 is refused.

AND IT IS FURTHER ORDERED THAT

2.The final hearing of this matter listed to commence at 10.00 am on 27 April 2021 for four (4) days is vacated.

3.The final hearing of this matter is now listed to commence at 10.00 am on 26 July 2021 for four (4) days.

4.The matter will be listed for a pre-trial case management hearing at a time and date to be advised.

5.The Applicant and Respondent are excused from attendance at the pre-trial case management hearing referred to in Order 4 above, unless they are appearing as a litigant in person at the final hearing.

6.Any application to adjourn the final hearing listed to commence on 26 July 2021 is to be filed and served by no later than 14 May 2021.

IT IS NOTED THAT

A.The requirements of s 102NA(2) of the Act apply to the cross-examination of each of the parties in these proceedings.

B.Given that s 102NA(2) of the Family Law Act 1975 (Cth) applies, the Court has today advised the parties:

(i)that pursuant to those requirements, neither party may cross-examine the other party personally;  and

(ii)that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;  and

(iii)as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and that application for the provision of a lawyer pursuant to the Scheme can be made by completing an application form available by accessing ...;  and

(iv)that a copy of these Orders will be provided by the Court to Legal Aid Queensland, which administers the said scheme.

AND IT IS FURTHER NOTED THAT

C.The Court respectfully requests that, given that the matter is listed for final hearing for four (4) days commencing on 26 July 2021, Legal Aid Queensland accord any Application submitted for the provision of a legal practitioner pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme significant priority.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

Hogan J

1. These are the Reasons I deliver orally in support of the decision I have made to refuse the Application brought by the father for leave to appear at, and be made available for cross-examination in, the trial listed to commence on 27 April 2021. 

2. On 18 December 2020, I made an order listing the trial for four days starting on 27 April 2021.  Clause 2 of that order provided that all parties attend the hearing in person. 

3. On 22 December 2020, Registrar Spink made a series of Directions designed to facilitate the matter coming to trial. Specially included within the Directions are Directions which deal with Applications brought by any party to appear by telephone or video: see in particular Clauses 21 and 22 of the Orders made 22 December 2020 which provide that all Applications, pursuant to Rule 16.05 of the Family Law Rules (2004), for attendance of any witness at the trial by telephone or video be filed and served no later than 4.00 pm on 9 April 2021, with any such Application to be listed before me at 9.15 am on a date to be fixed.

4. It was clear, therefore, at that stage at least, that the prospect of applications for witnesses, including the parties themselves, to give their evidence and be made available for cross-examination by means other than in person attendance at the Court during the course of the trial were foreshadowed or at least anticipated as being possible. 

5. The Application filed by the father on 20 April 2021 seeking an order for leave to appear and be cross-examined by electronic means, namely, Microsoft Teams, needs to be considered, I think, in the following circumstances which are established on consideration of the evidence.  The circumstances include the following: 

   (a)that it is agreed between the parents that the children, who live with their mother, will continue to do so;  and

   (b)the father works in Country B (as he has for some time) and is currently in that country;  and

   (c)the children the subject of the proceedings, X, who was born in 2018 and Y, who was born in 2010, have not spent time with or communicated with their father since January 2018; and

   (d)that circumstance arose given that it had been then alleged and/or that there were concerns that the father may have sexually abused Y and/or interacted with her in a manner that resulted in her contracting gonorrhoea;  and

   (e)the father was charged with unlawful indecent dealing with Y in January 2018 and, following a Judge-only trial, was acquitted of such charge on or about 9 September 2020;  and

   (f)irrespective of the father’s acquittal of the criminal charge brought against him, the mother’s position, as I understand it, remains that the children are at an unacceptable risk of harm if they are to spend time with their father or communicate with him, and that it is in their best interests for there to be orders that include her being accorded sole parental responsibility;  and

   (g)the father’s evidence now, according to his affidavit most recently filed, is that he will be self-represented at the trial;  and

   (h)when the matter was last before the Court on 16 April 2021 for a compliance check and to consider the mother’s application that the dates of 30 April 2021 and the reserve day of 4 May 2021 be adjourned because of the unavailability of the Counsel she wished to engage, I was told that the father’s solicitors had, on 29 March 2021, sent correspondence to the mother’s solicitors to ask whether they had any objection to the father giving evidence at trial by telephone or video using Microsoft Teams.  That correspondence also contained a request that the mother’s solicitors advise the father’s solicitors of her position by 5.00 pm on 1 April 2021:  that is, a period of about, but not longer than, three clear business days;  and

   (i)it seems uncontested that the mother’s solicitors did not provide a response by 5.00 pm on 1 April 2021;  and

   (j)on 8 April 2021 – that is, within the time for the bringing of an application pursuant to Rule 16.05 for the attendance of the father to give evidence by electronic means – the father’s solicitors filed a Request to Attend by Electronic Communication seeking that the father give evidence by electronic means.

6. Reference to the Request form makes clear that it relates to applications made pursuant to Rules 3.08, 5.06, 12.12, and 12.39 of the Family Law Rules (2004). Rule 12.39 is particularly irrelevant in the current circumstances given that it relates to appeals. Rules 3.08 and 5.06 are Rules which apply to various applications that are not before Judges. For example, Rule 3.08 provides that:

   A party may apply under Rule 5.06 to attend the hearing of an application for divorce by electronic communication. 

7. Rule 5.06 (which is found in Chapter 5, itself entitled “Applications for Interim Procedural, Auxiliary or Other Incidental Orders”) provides that a party may request to do any of a number of things – which include giving evidence – by electronic communication at a hearing, albeit, given the Chapter in which that Rule is found, not a trial. 

8. Rule 12.12 (which itself is found within Chapter 12 of the Rules entitled “Court Events Registrar-Managed”) provides that Rule 5.06, to which I have just referred, applies in relation to the use of electronic communications to attend a Court event other than a trial, as if the Court event were a hearing.  That is relevant, of course, because as I have said, that Rule is contained within a Chapter that deals specifically with Registrar-managed Court events, as opposed to events and appearances and hearings that are Judge-managed. 

9. Rule 16.05 itself specifically applies to events, trials or hearings that are Judge managed. It also contains, of course, specific reference to the timing for the bringing of an application, and that such application be listed before the Judge, or a Judge.

10. It is clear, therefore, that none of the Rules to which the Request to Attend by Electronic Communication specifically refers are apposite to an application by a party seeking to participate in the trial and give evidence at the trial when that trial is, self-evidently, judge managed or before a judge. 

11. In addition, of course, in this particular case there has been, and remains in force, the order that I made when I listed the matter for hearing.  That order specifically requires that the parties attend at the hearing in person. 

12. The father’s evidence as contained in his most recent affidavit is to the effect that, in essence, there could be compliance with the requirements of Rule 16.05, following him travelling to Australia and quarantining in Sydney: that is, he will be able to receive email documents; he would be able, it seems on his proposal, to give evidence via Microsoft Teams if that were permitted; and he would propose to conduct the trial by appearing via Microsoft Teams also.

13. The mother through her Counsel, Mr Blackah, opposes the Court making an order that the father have leave to be cross-examined, in particular, via electronic means.  Mr Blackah submitted, in essence, that there was the risk of injustice to the mother if the Court were persuaded to make such an order, in that she may be cross-examined in person as it were, whilst the father would be cross-examined via electronic means.  He also submitted, in essence, that the nature of the matters the subject of consideration in the current proceedings are such that the father’s application for leave to be cross-examined via electronic means should properly, in the interests of justice, be refused. 

14. The Independent Children's Lawyer’s position, whilst not advancing a firm view, noted that the Court was required to balance matters such as the potential delay of the hearing with any adverse consequences to both cases – the case of the father and the mother – in determining whether to exercise the discretion to permit the father to be cross-examined via electronic means and/or conduct the proceedings via electronic means.  A further issue the Independent Children's Lawyer raised, consequent upon the most recent information contained in the father’s most recent affidavit that he will be self-represented and conducting the hearing himself, is whether s 102NA of the Act applies so as to prevent him from cross-examining the mother, given the existence of a final family violence order between the parties in force until 25 October 2024. 

15. Given the circumstances of this case, I am not persuaded that the interests of justice or the children’s best interests will be served by permitting the father to appear to be cross-examined via electronic means. 

16. The assessments to be undertaken by the Court in the case which require determination include, it seems to me, whether the children are at an unacceptable risk if they are to spend time with their father, given the evidence before the Court contained in the affidavits of the parties and, of course, the Family Report prepared for the Court’s assistance.  Given the factual findings that it is likely the Court will be invited to make, I consider permitting the father to be cross-examined via electronic means is likely to work an injustice in that, absent the opportunity to see him in person and assess him during the course of him being cross-examined, I may be prevented from fully and properly considering his evidence and assessing the same. 

17. I consider, in this case, that I would best be assisted in discharging my obligation to determine those parenting orders which are in the children’s best interests by having the opportunity to observe the father be cross-examined in person about the various issues that have been, and clearly remain, alive in this proceeding.  I consider that permitting the father to be cross-examined electronically is something that will likely deprive me of the opportunity of assessing the father’s evidence appropriately, and that such course runs a real risk that neither parent’s case is accorded proper adjudication. 

18. I arrived at this decision taking into account: the obligation cast upon the Court by the Rules which require that the Court make appropriate use of technology where possible; the effects consequent upon a delay in finalising the proceedings – a consequence I think that, practically, is inevitable given my ruling in relation to the father’s application for leave to participate and be cross-examined electronically; the impact on the children of such a delay; the costs to the parties and the public generally consequent upon a delay that will inevitably follow upon my decision;  the consequences and practical imposts upon other matters which would otherwise have been able to have been heard in the time allotted for this matter. 

19. However, in the exercise of the broad discretion conferred on trial Judges about the manner in which final hearings before them proceed, for the Reasons I have just expressed orally, I decline to accede to the father’s request to participate in the trial or be cross-examined via electronic means. 

20. I also note that, given the terms of Clause 2 of the order I made when the matter was set for final hearing, I do not consider it simply to have been a matter for the parties to reach agreement about the father’s participation in the proceedings via electronic means, in any event. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate:

Dated:       21 April 2021