Stierford and Stierford

[2009] FamCA 584

FAMILY COURT OF AUSTRALIA

STIERFORD & STIERFORD [2009] FamCA 584

FAMILY LAW – PRACTICE AND PROCEDURE – Application for permission to adduce evidence from a witness by electronic communication at trial

APPLICANT: Ms Stierford

RESPONDENT: Mr Stierford

FILE NUMBER: SYF 2437 of 2005

DATE DELIVERED: 1 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 24 June 2009 and 1 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards of Counsel appeared for the Applicant Wife

SOLICITORS FOR THE APPLICANT: Moira Ryan Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton of Counsel appeared for the Respondent Husband

SOLICITORS FOR THE RESPONDENT: Barkus Edwards Doolan

Orders

IT IS ORDERED THAT:

1. Permission is given to the Husband’s sister, Ms B, to provide evidence by electronic communication at the trial of this matter subject to her providing bank documents evidencing payment of all moneys said to have been loaned personally in 2003 to the Husband, Mr Stierford and/or M Company and documents evidencing repayment of such loans together with tax returns of Ms B whereby she disclosed any receipt of any interest on such loans as taxable income in the United Kingdom.

2. The application for the Husband’s brother, Mr A Stierford to provide evidence by electronic communication at the trial of this matter is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Stierford & Stierford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  SYF2437 of 2005

MS STIERFORD

Applicant

And

MR STIERFORD

Respondent

REASONS FOR JUDGMENT

1. Rule 5.06 of the Family Law Rules provides for leave to be given for attendance by electronic communication.  A party may request permission to adduce evidence from a witness by electronic communication.  The rule sets out how that request is to be made.

2. Rule 5.06(5) provides the Court may inter alia take the following matters into account:  the distance involved; the difficulty the party may have in attending because of illness or disability; the expense in attending; savings to be incurred by using the electronic communication; whether any other party objects to the request.   

3. The applicant, for the purposes of today's application, is the respondent in the property settlement proceedings, Mr Stierford.  By an application dated 14 June filed on his behalf he is seeking that evidence be taken by telephone from two witnesses who reside in the United Kingdom.  The two witnesses are his brother, Mr A Stierford and his sister, Ms B.  Affidavits detailing their substantive evidence have been filed, as I understand it, on 26 September 2008 in the case of Ms B and 16 June 2009 in the case of A.

4. The matter is set down to proceed before me in the Family Court, Sydney over four days commencing 14 July.  The grounds of the application to give the evidence by electronic communication are the expense involved in flying the witnesses to Australia; the serious inconvenience to the witnesses; it will be necessary for them to be away from their homes and their employment for about a week; the necessity for the sister to care for her mother who is said to be in a nursing home.

5. The respondent has filed a response seeking a stay of any such permission until the husband provides full disclosure.  I am informed on today's date that the response should be amended and the respondent now seeks a dismissal of the application and, in the alternative, if the Court is minded to grant the application in any form, a stay until there has been compliance with disclosure provisions of the rules.  Reliance is placed on an affidavit of the wife's solicitor, Moira Ryan.

6. The matter was mentioned before me last week and I heard counsel by telephone from Sydney.  The matter was taking longer than had been anticipated at that stage and as counsel had Court commitments I adjourned the application to today’s date.  On the previous occasion reference was made to an affidavit of the husband filed in March this year which, unfortunately, was not on the Court file but has subsequently been forwarded to me from Sydney.  I have now received that and perused that document. 

7. The contents of Moira Ryan's affidavit suggests that permission should be refused as the husband has breached Court Orders of 31 January 2007 to pay tax refunds to a designated account and in addition the husband has failed to disclose relevant documents and, thirdly, regard should be had to the conflict in the husband's evidence as to what he claims in other documents is the level of debt from the companies operated by his siblings and what is now claimed to be the extent of the loans.  At first blush the position adopted by the applicant wife is akin to punishing the witnesses for the sins of the respondent husband.

8. On behalf of the husband it was argued that his employment is now terminated and he does not have funds to afford trial expenses of the witnesses for airfares and accommodation and suchlike.  I note, although the orders were not made by myself, that apparently $50,000 was released to the parties from secured funds in recent times, together with a sum of about $600,000 for the parties' own use.  I do not accept any merit in the husband’s claim of being unemployed at the moment.

9. The wife now says that his brother A’s evidence is critical in a number of areas other than the important area of ascertaining the amount of the loans said to have been made to the husband and/or the company, M Company.  The husband says that A Stierford’s company, H Company Pty Ltd employed him.  This evidence is challenged by the wife on the basis that she says the company is simply the alter ego of the husband, that there is no evidence of regular salary payments evidencing the claim that he was employed at £40,000 a year.  It is said there is one entry for a sum, I think, of about £14,000 at one stage which is shown as consultant's fees and there are a number of other areas which throw doubt on the husband being an employee in the sense of being paid on a regular monthly basis.

10. The issues which the wife wishes to canvass include:

    ·    was the husband employed by H Company or is it his company?;

    ·    has his employment been genuinely terminated or is it a ruse?;

    ·    were the loans made to the husband or the company?; and

    ·    what did the husband do with the proceeds of the loans?

11. I accept that there is evidence from a Mr S, an accountant in Sydney, who has filed an affidavit on behalf of the husband which would seem to indicate how the moneys were expended.  I am not sure whether it covers all the moneys and, if not, to what extent there is an unexplained discrepancy.  Again, without knowing the full extent of the case, I am not sure of the significance whether the loans were made directly to M Company or via the conduit of the husband.  I understood the position to be the loans were at the husband’s request and they were inter-company loans.

12. These are all relatively weighty issues.  There is considerable angst on the part of the wife that disclosure given by the husband to date has been less than adequate.

13. The husband says that he is at odds with his brother at the moment over the unpaid moneys.  He has repaid, I think, £88,000 but there remains a considerable amount of money to be paid, and although he resides on the same property as his brother, he says the relationship between them is not good and that if the brother is not allowed to give evidence by phone, he may decide not to come. 

14. In the exercise of my discretion I propose to allow the husband’s sister Ms B to give evidence by phone subject to two conditions: Ms B providing bank documents evidencing payment of the loans to the husband and/or M Company and repayment of the loans and, secondly, any evidence of tax returns of Ms B or her company.

    RECORDED  :  NOT TRANSCRIBED

    A loan by the sister personally to her brother and/or the company in 2003 and repaid in July 2008 and evidence of any tax returns by the wife whereby she has disclosed any interest component as taxable income of the United Kingdom.

15. So far as the brother, A, is concerned I am of the view that there would be serious prejudice to the wife's case if he was to give his evidence by phone.  There are just too many areas where he has been involved in the affairs of the husband as his employer; as a lender as a sibling.  I might have contemplated it if there was a video link but, even then, it would be extremely difficult providing documents to a person, asking the witness to explain various entries in bank accounts, et cetera.  If the husband wishes to adduce this evidence he will have to do so with A in attendance personally.  Determination of the facts of this matter will be difficult enough without having to take such critical evidence by telephone link up.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  1 July 2009