Tobias and Werner

[2017] FCCA 2349

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOBIAS & WERNER [2017] FCCA 2349

Catchwords:
FAMILY LAW – Application to appear by telephone for an interim hearing in Cairns by the father who lives in Sydney;  Application to appear by telephone from (location omitted) by the mother – each party has engaged in unacceptable conduct when appearing by telephone and failed to comply with the Courts Orders – Court time wasted with issues arising from their telephone appearances – application for the mother to appear by phone refused – fathers’ application to appear by phone refused – father is to attend Court by video-link from the Sydney registry – if his conduct reoccurs the link will be terminated – Mother to appear in person.

Legislation:

Federal Circuit Court Rules 2001

Applicant: MS TOBIAS

Respondent: MR WERNER

File Number: CSC 351 of 2016

Judgment of: Judge Willis

Hearing date: In Chambers

Date of Last Submission: 4 September 2017

Delivered at: Cairns

Delivered on: 26 September 2017

REPRESENTATION

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Self-represented

Solicitors for the Independent Children's Lawyer: Mrs Bassano

ORDERS

1. That the interim hearing date of 20 October 2017 is vacated.

2. That the matter be listed for interim hearing on 4 October 2017 at 10:00 am in the Federal Circuit Court of Australia at Cairns.

3. The fathers’ application to appear by phone is refused.

4. The mothers’ application to appear by phone is refused.

5. The Mother is to attend Court in person on 4 October 2017.

6. The Father is to appear by video-link from Courtroom 3C of the Federal Circuit Court of Australia at the Lionel Bowen Building, 97-99 Goulburn Street Sydney on 4 October 2017 at 10:00 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 351 of 2016

MS TOBIAS

Applicant

And

MR WERNER

Respondent

REASONS FOR JUDGMENT

1. Each of the mother and father have filed applications to appear by phone at a forthcoming application in relation their only child [X] born 2004 ([X]). 

2. These reasons relate to those two telephone appearance applications.

The Father

1. Turning first to the application of the father. He asks to appear by phone because the cost of travelling from Sydney where he is currently living to Cairns is prohibitive. The father also submits that there is no guarantee that the matter will be heard on that day. He says he will suffer loss of income to attend.  Further, the father may submit to cancel his application saying ongoing delays have rendered his application obsolete.

2. The record will show that this Court has been accommodating the father appearing by phone on various occasions. The file will also show that the Court has at every event, tried to resolve the parties’ ongoing disputes. There are final Orders in place for the mother to exercise sole parental responsibility regarding education. The father is challenging the mother’s decision to allow [X] not to return to the boarding school he started this year in Sydney.

3. I have considered the father’s application to again appear by phone.  At the previous hearings, there have been unnecessary and ongoing difficulties and delay in trying to run mentions and hearings with the father on the phone.  On several occasions there is unacceptable noise and interference at the father’s end of the call. The hearings and mentions are taking a disproportionate amount of time which I attribute largely to the telephone appearances.   

4. I have had to stand matters down more than once to ensure that the material allegedly sent by one party to another is re-sent.  On several occasions the father has failed to comply with requests to file material.   These failures are brushed aside with excuses. On 20 July 2017 with the father allegedly having sent documents by email to the mother which was allegedly not received. The Court has always tried to re-send copies or take a pragmatic approach to taking evidence to make up for any shortfalls.

5. The difficulties for a Judge in having litigants on the phone have been present in many of the telephone appearances to date. The telephone appearances on 21 August 2017 were unacceptable.  I attempted to hear the current application regarding the parties’ child’s schooling, listed with priority at around 2:00pm. However, as has happened in the past, again the matter had to be stood down because allegedly the Family Report had not been received. The Independent Children’s Lawyer accepted that her office was late sending it out. I stood the matter down to allow the parties to be sent the Family Report and an addendum.  From memory, the father had received his copy of the first Family report however the mother said she had not. Copies were sent so that both parties had both reports.

6. The father informed the Court when it resumed at 5:38 pm (the Court having gone on to other urgent matters) that he had read the initial Family Report but not yet finished reading the addendum Report  recently released.  This was after having had 3 hours to do so.

7. The Federal Circuit Court is a busy court of first instance. The listings on any given day are heavy. This is because of the volume of matters and often the urgency where children are at risk. On 21 August 2017 after standing the matter down to allow the parties to read the Family Reports and having time wasted in trying to determine what each party had actually received and read, the Court went on to deal with other urgent matters.  It was my assessment that the other matters required an immediate judicial decision in cases where children were at risk. The Court dealt with the other urgent matters which took some time.

8. The Court resumed the hearing of this mother and father at 5:40 pm.  It was clearly too late to start hearing an interim application.

9. Upon hearing that the Court could no longer hear this matter that day that a further date would be allocated in October, the father’s response was an unacceptable outburst of shouting his disapproval, talking over the top of the Judge such that nothing further could be said by the Judge and making statements which would amount to conduct equivalent to contempt of Court. 

10. As is often the case, litigants who appear by phone engage in conduct that is intolerable and would not happen if they were standing in a Court room facing the Judge.  This matter also involves an application by the father to try and overturn the mother’s current final Order for sole parental responsibility which he agreed to at a final trial in May 2016.  The mother and father are each self-acting. 

11. The Court through the assistance of the Independent Children’s Lawyer, organised for urgent reports. The Family Reports indicate that [X] does not wish to return to (omitted) boarding school, that he has been distressed at times at the school and deeply troubled by the way some of the other students treat and bully each other. There is a concern that [X] may have been self-harming at the school. Remaining living with his mother and attending school in (location omitted) is a decision that the mother is legally able to make. That decision does not place him at risk.  The father wishes to have the child return to the boarding school.   It was this Court’s assessment that the decision about [X] returning to the private school in Sydney could, after consideration of the other matters waiting to be heard, be appropriately listed in October. There were no other dates for an interim hearing. The father’s outbursts were both improper and uncalled for.

12. There have routinely been delays and difficulties both of a technical and personal nature when having the father appear by phone. During the telephone hearing on 20 July 2017, with the mother and father each on the phone, whilst the mother was giving oral evidence explaining her position regarding the schooling, and when the mother relayed to the Court her evidence of the father being thrown out of the Aboriginal Education Committee with another school that [X] attended, and that the father had offended the principle, a very loud scraping noise occurred, such that the Court could not continue with the mother’s evidence.   As the transcript will show (page 9) the Court inquired what was going on. The mother said she was not making the noise. The father who was sitting in a room somewhere in Sydney, said he hadn’t touched anything and denied making the noise. The noise continued, and the Court had to stand down and then redial both the mother and father back into the call. Thereafter, during the same hearing, when the Court was making procedural Orders (see page 17 of the transcript) the father just stopped engaging in the hearing. When asked whether or not he was still on the line, a deathly silence occurred.  There was however, no technical indication that the father had disconnected the call. I refused to ring back the parties for a third time and requested that the Independent Children’s Lawyer inform the father what occurred in the balance of the hearing.  A copy of the Orders were sent to the father.  

13. I have had regard to the overall conduct of the father in terms of him being a litigant. I am not satisfied that he will engage appropriately or with the required courtesy and respect for the Court.  This is in addition to the other issues I have mentioned in these reasons that apply to both the mother and the father.

14. Having considered all of the matters referred to in these reasons, I am no longer prepared to have the father appear by phone.

15. The Court has made arrangements for the father to attend the forthcoming hearing by video link from the Federal Circuit Court in Sydney.  The father is to announce his arrival on the day allocated, and explain that he is appearing by video link to Cairns. The courtroom allocated is 3C at the Lionel Bowen Building, 97-99 Goulburn Street Sydney.

16. In the event that the hearing by video encounters the same delays, difficulties, and conduct by the father, the video hook up will be terminated and the father will need to appear in person.

The Mother

1. The mother has also lodged an application to appear by phone at the forthcoming hearing.

2. The mother lives at (location omitted). The distance from (location omitted)/ (location omitted) to Cairns is approximately (omitted) kilometres.  Generally applications to appear by phone from litigants living within 200 kilometres of the Court will not be granted. 

3. The mother says that she wishes to appear by phone due to the long history of domestic violence which is detrimental to her health to be in the father’s presence. She also says that [X] who finishes school at 3:00 pm is not able to catch the bus home due to transport issues.

4. The record will show that as with the father, the Court has permitted the mother to appear by phone on other occasions for a range of reasons put forth by the mother.  All of these appearances, as with the father, have not been without their difficulties. The record will also show that there have been inordinate delays in mentions and hearings when the mother has appeared by phone. The hearing of 20 July 2017 is one such occasion. The mother indicated that she did not have the father’s material once the mention started. She also explained that she did not have a fax machine and that she was having internet problems. The Court then directed the mother to drive to and attend at the local post office where the documents would be resent by fax.  Without the material, the court time and listing would have been utterly wasted. The mother then announced that she had now found the material emailed by the father. This unnecessary delay lies with the mother. All of these issues are dealt with much more expediently when litigants appear in person.

5. On 21 August 2017 a priority date given to the parties, the mother advised the Court she had not received the Family Report. It seemed the Independent Children’s Lawyer was late sending it out. The Court lost the opportunity to hear the matter on that day as a result of all the delays, including the mother allegedly not having read the material.  Those issues, which have occurred on more than one occasion, could be dealt with expediently if both parties were in person in Court.  The parties could have spoken with the Independent Children’s Lawyer and read the material prior to coming into the Court room.

6. The Court went on to other urgent matters and at 5:40 pm returned to this matter, only to find that the father had still not read all of the addendum Family Report.

7. The transcript will show that from time to time the mother and the father have to be reprimanded about their conduct being told to stop speaking over the Judge.

8. As to the issue of the child’s school bus and the mother alleging she has problems surrounding that issue, these issues are domestic and all families that appear before the Court have to make whatever child care arrangements are necessary.  The mother can do likewise.

9. As to the allegations of domestic violence and the mother not wishing to appear in person with the father, this Court is well used to dealing with litigants that are victims of domestic violence and specific arrangements can be made at the request of a party.  

10. The material in this matter indicates that there were domestic violence allegations by the father against the mother and the mother against the father.  At the final trial before His Honour Judge Coates in Cairns in May 2016, when the mother appeared in person, each party chose not to pursue those allegations. Orders were however made for the mother to have sole parental responsibility. As I have said, this Court is well used to making appropriate arrangements tailored for each matter within the Courtroom and I am not prepared to have the mother appear by phone because of the past allegations of family violence. In any event, the father will be appearing by video link, so he will not be in the same room on this occasion, however, I do not regard that issue as justifying the mother appearing by phone.  

11. I consider in this matter that both the mother and father are well versed in playing games. The addendum was an important part of the evidence. I had earlier in this application suggested to the father that he should travel to Cairns for the Family Report interviews to speak to his son regarding his son’s seemingly overt distress at not wanting to return to his boarding school in Sydney. The father chose instead to appear at the Family Report interviews by phone.  

12. The mother was directed to take the child (aged 12 years at the time) to the Family Report interviews in person in Cairns.  I was assured by the mother that this would happen.  I subsequently received a Family Report which indicated that the neither the mother nor the child attended in Cairns as requested. The Family Report writer indicates in the Report that she had phoned the mother twice and left messages for the mother on 26 July 2017 (the urgent date allocated for the interviews) however, the mother did not respond to the messages and did not contact the Family Report writer that day at all. The mother was contacted on 27 July 2017 but by phone.

13. This resulted in the Court requesting that the mother and child attend as made for an addendum to be prepared and directing that the mother to take the child to the Family Report writer.  An addendum was prepared and interviews occurred on 3 August 2017. The issue of a child’s views is one of the issues that the Court has to consider when making its decision about the best interests of the child. When reading the subsequent Report, the child said that he did not attend the first interview, as he had stayed up late and he was tired and unprepared.  He said that his mother did not even tell him about the interview until the morning it was to occur. The child was happy to come on the second occasion as he  had some notice and was prepared.

14. Each of the mother and father have acted contrary to the Orders made on 20 July 2017 namely:

    1. The Independent Children’s Lawyer organise for the preparation of a short Family Report and each of the parties are directed to comply with all reasonable requests of the Independent Children’s Lawyer to attend and participate in person on the dates and times as requested in order for the preparation of the Family Report to occur.

    2. The Mother and the Father are to do all acts and things to ensure that the child [X] born 30 November 2004 (“the child”) attends the Family Report Interview and the Court REQUESTS that the Father attends in person so that he has the opportunity to speak with the child personally.

    The mother was also supposed to file and serve a Response to the application in a case and an affidavit setting out the orders she seeks and addressing the issues in relation to the child’s education by no later than 25 July 2017. That has not occurred. Eventually to keep this moving I took oral evidence from the mother. I have done this on several occasions for each of the parties to try and use the Court time and progress their matters. The transcripts will show that there have been failures by each of the mother and father in terms of filing documents either at all, or in the time prescribed. 

15. Overall I have the impression that neither the mother nor the father have shown sufficient respect for the Orders and procedures of the Court. Nothing about their conduct is conducive to the Court being prepared to continue to hear procedural hearings or interim hearings or final hearings with the parties on the phone.

16. Given all of the delays, interruptions and failures which routinely occur when these two parties appear by phone, and because of the matters referred to by me in these reasons, I am no longer prepared to have the mother appear by telephone. As I have already said elsewhere in these reasons, likewise I am not prepared to have the father appear by phone either.

17. The parties’ ongoing acrimony also makes each Court appearance longer than it needs to be when these parties appear by telephone.  I am not satisfied that I am able to determine this child’s best interests or conduct any further procedural or interim hearings by telephone. The waste of the public resource of the Court is also paramount in my mind when making this Order. 

18. A copy of these reasons are to be sent to the parties at their addresses as shown on their notice of address for service, including of course the Independent Children’s Lawyer.

19. An email is also to be sent to the parties enclosing these reasons. The parties will acknowledge that email upon receipt.   

20. The matter has been bought forward by the Court and is now listed at 10:00 am on 4 October 2017 in the Federal Circuit Court in Cairns.   The previous date of 19 October 2017 is vacated.

21. Arrangements have been for the father to appear by video as referred to in these reasons.  

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Willis

Date: 26 September 2017