SAYID & ALAM - [2020] FamCA 400

FAMILY COURT OF AUSTRALIA

SAYID & ALAM

[2020] FamCA 400

FAMILY LAW – PRACTICE AND PROCEDURE – matter listed for six day trial – where the mother has recently become self-represented – where discretion of s 102NA(1)(c)(iv) is applied – where in the circumstances of the COVID-19 pandemic and procedural fairness requires trial to be adjourned – final hearing dates adjourned – interim hearing ordered – orders made for interim hearing to receive evidence from both parties without cross-examination

Family Law Act 1975 (Cth) ss 69ZT, 102NA, 102NB(c)

APPLICANT:

Mr Sayid

RESPONDENT:

Ms Alam

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3215

2015

DATE DELIVERED:

15 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

15 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lawson

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

THE RESPONDENT IN PERSON:

Ms Alam

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dr McConaghy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Weaver

Orders

The final hearing listed on 29 May 2020 for 6 days be vacated.
The matter be listed for at 10:00 am on 29 May 2020 for interim hearing to be conducted by Microsoft Teams.
Orders be made in accordance with the document titled “Father’s Minute of Order” as initialled by me, dated today and placed with the papers.
The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) apply to cross-examination, NOTING that further necessary directions will be made when the matter is listed for Final Hearing.
I DIRECT the Independent Children’s Lawyer to take all necessary steps to organise the conduct of a mediation, with such mediation to take place prior to 29 May 2020.

IT IS NOTED THAT

(A)For the purposes of the interim hearing, both the parties will rely upon their Trial Affidavits, together with Expert Evidence produced by Dr FF.
(B)When the question of mediation was raised with the parties, it appeared that neither party saw a prospect of success but were prepared to make an attempt.

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 Sayid & Alam 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 SYDNEY

FILE NUMBER: SYC 3215 of 2015

Mr Sayid

Applicant

And

Ms Alam

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

In proceedings SYC 3215 of 2015, these proceedings have been in the Court for some 5 years. They are currently listed for final hearing to commence on 29 May 2020 for 6 days. When the matter was set down for final hearing, the COVID-19 pandemic was not in the contemplation of the Court or any of the parties. I can take judicial notice of the fact that it has had an enormous impact on the daily patterns of life throughout Australia and has resulted in the need for numerous changes in the operations of this Court.
At the present time, all hearings need to be conducted using electronic means unless they can be completed in a one and a half hour timeframe. There is discouragement in using face-to-face Court time by reason of the highly infectious nature of the COVID-19 virus. In the present matter, the mother has become unrepresented. Despite that, the parties have successfully complied, with some adjustments, with directions for the preparation for final hearing. In particular, the mother has filed an Affidavit in support of the case she wishes to make.
When the matter was listed for final hearing, it was anticipated that a number of witnesses will be called beyond the parents and the expert Dr FF. When the matter was listed before me on 15 May 2020, I was informed that the number of witnesses had been refined so that only the mother, the father and the expert will be called to give evidence.
The matter was listed on 15 May 2020 for two reasons. One was that by communication to chambers, the Independent Children’s Lawyer raised as a potential issue the application of s 102NA of the Family Law Act1975 (Cth) (“the Act”). The other was that it was the Court's perception that the conduct of a 6 day trial with one unrepresented litigant and thousands of pages of documents was problematic and may not only consume unnecessary Court time through delays in technology, but place the mother, in particular, as an unrepresented litigant, at a disadvantage.
Counsel for the father has quite properly pointed out the length of time in which the proceedings have been before the Court and that the limitation of cross-examination to the mother, father, and the expert will have the obvious consequence that the trial is unlikely to take as long as originally thought.
I am satisfied, and it appeared ultimately to be the agreed position of the parties, that if sub-section 102NA(2) is to apply, it would not be mandatorily, but by virtue of the exercise of discretion set out in sub-paragraph 102NA(1)(c)(iv). The reason why it was argued particularly by the Independent Children's Lawyer that the exercise of that discretion may be desirable was because there were allegations of family violence made in the Affidavit material, and that it appeared likely that the mother in conducting her own case would be put in the position of cross-examining the father about some of those allegations.
Counsel for the father drew my attention to sub-paragraph 102NB(c) which embraces the possibility of cross-examination taking place electronically. Ironically, in the course of the COVID-19 pandemic, these proceedings would have to be conducted electronically using the Court's preferred platform, Microsoft Teams, so that there would be no face-to-face cross-examination, in any event.
Putting that to one side, if I make an order pursuant to sub-paragraph 102NA(1)(c)(iv), then the platform for the mother to apply for representation through Legal Aid will have been created. In that regard, I have been informed by her, and I accept, that she has applied for Legal Aid without success. If an order is made as proposed under sub-section 102NA(1), then that position may alter.
This is a difficult situation in which a number of competing considerations make an obvious way to deal with the hearing unclear. Having heard the parties, I have formed the view that the preferable approach should be that the matter remain listed on 29 May 2020, but that the hearing should be conducted as an interim hearing only.
Although I am satisfied that the parties have taken the necessary steps to prepare the matter for a final hearing, having heard submissions from the mother who is unrepresented and observing her, whilst I can accept she is a competent person who can articulate her case up to a point, I am not satisfied she has any real understanding of the provisions of the Act and, of course, she would be completely unaware of any rules of evidence to the extent they apply to parenting proceedings which, of course, they only do to a limited extent by reason of s 69ZT in Division 12A of Part VII of the Act.
In those circumstances, I have formed the view that, on balance, endeavouring to provide fairness to all parties, it is appropriate that the hearing proceed, but as an interim hearing, not as a final hearing. That will enable me to receive evidence from both parties without cross-examination, and I note that there is in existence already a comprehensive expert report from Dr FF.
My view has been influenced, not entirely, but significantly, by my perception that since the best interests of the children are the paramount consideration, it is essential that I am properly apprised by both parents, as well as the Independent Children's lawyer, of the case they propound which they say is in the best interests of the children. I am not satisfied that that essential requirement can satisfactorily be met in the circumstances of this case where the mother currently will not have any legal representation.
The very fact that the proceedings have been in the court for now 5 years indicates the level of complexity which exists in this case. That perception is underlined by the report of Dr FF which indicates, in his view, problems with the parenting styles of both parents and a high degree of conflict. Whilst a final hearing would be, in an ideal world, the best way of finalising the matter, I am not satisfied that in the current circumstances of the COVID-19 pandemic and the limitations that are placed upon the conduct of a hearing by electronic means, and especially where one litigant is self-represented, that the best interests of the children are necessarily going to be properly served by the conduct of a final hearing.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 15 May 2020.

Associate:

Date: 27 May 2020