Vanetti & Harrison

[2021] FamCA 557

FAMILY COURT OF AUSTRALIA

Vanetti & Harrison [2021] FamCA 557

File number(s):

MLC 11706 of 2019

Judgment of:

BENNETT J

Date of judgment:

26 July 2021

Catchwords:

FAMILY LAW – EVIDENCE – video link – where mother objects to final hearing on courts’ electronic platform

FAMILY LAW – EVIDENCE – video link where mother objects to her evidence and cross examination being received by electronic means with the possibility of father’s evidence and cross examination being conducted face to face – where no party seeks that entire proceed as an electronic trial

FAMILY LAW – EVIDENCE – video link – where electronic trial is deemed inappropriate for final hearing of this particular parenting and financial matter by virtue of the mother’s mental health difficulties – safeguards of fully attended hearings as compared to virtual hearings – where adjournment of trial is granted and trial will proceed on a fully attended basis with an unfortunate delay

FAMILY LAW – COSTS – federal proceedings costs fund – where oral application is made for a costs certificate to issue under the federal proceedings costs scheme for a discontinued trail – where adjournment was not the fault of either party – where the court was not satisfied that the trial was “discontinued” – where certificate denied.  

Legislation:

Federal Proceedings Costs Act 1981   

Number of paragraphs:

25

Date of hearing:

26 July 2021

Place:

Melbourne

Counsel for the Applicant:

Ms Johnson

Solicitor for the Applicant:

Fair Family Law

Counsel for the Respondent:

Mr Thompson

Solicitor for the Respondent:

Melbourne Family Lawyers

Counsel for the Independent Children's Lawyer:

Mr Gardiner

Solicitor for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

MLC11706/2019

BETWEEN:

MS VANETTI

Applicant

AND:

MR HARRISON

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	26 JULY 2021

THE COURT ORDERS THAT:

1.The final hearing set down for 26 to 30 July 2021 inclusive be and is hereby vacated and in lieu thereof the matter be set down for final hearing before me on 28 February 2022 at 10.00 am estimated to take 5 days.

2.This matter otherwise be listed for mention before me on 18 November 2021 at 9.00 am for further directions (“the mention date”).

3.There be liberty to the parties to jointly by consent obtain an administrative adjournment of the mention date in the event that the matter is not ready.

4.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

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 Vanetti & Harrison 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).

EX TEMPORE REASONS FOR JUDGMENT

1. This parenting and property matter comes before me on the first day of the defended hearing. There are certain impediments to starting the trial and, ultimately, I have adjourned the proceedings to be heard in 2022.

2. Today’s hearing was conducted on the courts’ MS Teams platform.  Melbourne is in lockdown due to the pandemic but there is some optimism that restrictions will ease at midnight tomorrow. Under eased restrictions, a face to face trial may be accommodated in the Melbourne Registry of this Court with the approval of the Chief Justice.

3. The Independent Children’s Lawyer’s counsel has fallen ill and Mr Gardner of counsel has taken that brief on the basis of being ready this afternoon to hear some of the evidence of Ms b, a psychologist and private family report writer, who is going to give evidence briefly at the start of the trial as well as at the conclusion of the evidence adduced by the parents.  In the time available, Mr Gardiner has read reports by the private family report writer and by Dr C.  There are two of each.  Significantly, he has not read the parents’ material which is fact-rich, fairly dense in its composition and which, I estimate, will require some hours to get on top of.

4. A change of counsel is, however, not the main impediment. The main impediment is that this matter can only proceed this week, at best, partially by audio-visual link using the Court’s Microsoft Teams platform. 

5. This matter was mentioned before me on 15 July 2021 immediately following a dispute resolution conference or mediation. The mediation did not resolve the matter but the parties were also tasked with preparing for outcomes.  Ms Agresta of counsel, appeared for the Independent Children’s Lawyer at the mediation and the mention. She submitted that, if at all possible, this defended hearing should proceed on a fully attended basis rather than by electronic means.  She submitted, as Mr Thompson correctly recalls, that an electronic hearing would be “challenging” for the mother. 

6. Today, Counsel for the mother seeks that this hearing be vacated and the matter not be relisted until the hearing can be conducted on a fully attended basis.

7. Mr Thompson, for the respondent husband, says that his client is willing and ready to proceed with the final hearing and that all of their documents are filed.  There is also, in the substantive material, an obvious desire by the father to draw a line under proceedings and get on with parenting the boys as best the mother and father can without interference and the continual drain of Court proceedings.  That is understandable.

8. Counsel for the applicant mother seeks an adjournment. Ms Johnson submits that the matter cannot proceed fairly this week because her client’s evidence will necessarily precede that of the father and her evidence would be observed by audio-visual presentation whereas the father’s evidence could possibly be heard on a fully attended basis.  A compromise to that would be that notwithstanding the ability of the parties to come into Court, the entire trial proceed on an audio-visual basis and nobody give evidence on a face-to-face basis. None sought an order to that effect. 

9. Counsel for the mother submitted that video observation is inadequate because I would not be able to see the whole of the person, I would be looking only at the mother’s face. Anyone who has observed an audio-visual trial would know that submission to be incorrect.  In fact, the scrutiny that one can bring to bear in an audio-visual medium is, in my experience, more penetrating and more immediate than that which you have in a fully attended courtroom.  Certainly, the ability to look at the reactions of parties to evidence by someone else is in the witness box is infinitely better and more immediately comparable in a virtual hearing than it is when sitting in a fully attended court.  The ability to see more than a witness’s face can be easily accommodated by moving a camera. 

10. The second argument advanced by counsel for the mother was the mother’s language difficulty.  The mother is of European heritage. English is her second language. The mother concedes that she does not require an interpreter for the hearing.  However, Ms Johnson of counsel says that her instructions, which would likely be given by text, may be in broken English.  In evidence I have seen some of the texts that have been written by the mother and, whilst there is some broken English, there does not appear to be a paucity of expression. 

11. The next matter relied upon by Ms Johnson is her client’s alleged mental capacity or alleged incapacity.  Ms Johnson did not elaborate on this and so I do not know quite what she meant.  Nonetheless, in my reading of the professional reports, particularly that of Ms B in her last report of 2021, there is a strong suggestion that the mother is putting a lot of store on a final hearing, not just in the sense of some finality but in the sense of her being able to establish that she is not responsible for any mistreatment of the children for whatever reason going as far back as 2017 or 2018. It is a theme of the mother’s responses, to what appears to be reality testing by the private family report writer, that all will be well for the mother’s case when the judge sees her in court because she is the children’s mother. If this is accurate, I am not sure what process of proof the mother has in mind.

12. I was informed at the recent mention that the mother does not accept the opinions of the single expert witnesses, being the private family report writer Ms B and psychiatrist, Dr C. The mother alleges that the facts on which the experts have drawn their conclusions are false. The family has an extensive history with protective services. As a result of the involvement of protective services, the children were placed in the father’s care and the mother was excluded from the family home. Whilst there is no agreement on the division between the parents of homemaker and parent responsibilities (in the context of either parenting or financial aspects of this case), the father had then to accommodate within his responsibilities as breadwinner for the family the full time care of two young boys. The mother was not working outside the home.

13. The facts that the mother disputes are, as best I read the material, in respect of early injuries to the boys which were investigated by protective services who made findings adverse to the mother and which led to the young children being placed in the primary care of the father. However, I was specifically told at the mention on 15 July 2021 that none of the parties propose to call any of the child protection workers who were involved with the family during that time and that regard can be had to child protection records as “historical context”. It seems to me that it would follow that there will be very little (if any) ability in the court to make findings of fact on an historical basis – as relevant child protection personnel with firsthand knowledge will not be called to give evidence and/or be cross examined.

14. As I interpret Ms Agresta’s comments, she was concerned that, if the mother does not obtain the result she wants from a final hearing, the mother is likely to devalue the final hearing that has taken place because it was an electronic hearing rather than a conventional face to face hearing. That is, the mother will not accept an adverse result because she will impugn the efficacy of the trial conducted wholly or partly by audio-visual link.  From the perspective of the children’s interests, that lack of confidence in the court system would be unfortunate and, likely, lead to further litigation. 

15. I have heard separately from Mr Gardner who has had an opportunity to confirm his instructions.  He does not resile from the concerns expressed by Ms Agresta. Mr Gardiner says that, otherwise, the Independent Children’s Lawyer is ready to proceed.  He would like as much time as possible to prepare the matter but could envisage being ready to proceed at some stage tomorrow.

16. Mr Gardiner observed that, in a fully attended hearing, the mother would have a more immediate appreciation of what was happening in Court and perhaps a greater ability to be comforted by someone who also knew what was happening in Court.  During the pandemic, this court continued to function because of its ability to hear matters electronically. There are many benefits to virtual trials but there are shortcoming too. The safeguards inherent in fully attended Court hearings may only now be obtaining prominence. One such safeguard is that parties giving evidence, particularly parties who do not give evidence well or parties who ultimately receive an adverse outcome, are unsupported immediately before and after their evidence is given because they are remote from their solicitor and supporters. They may be less distracted by the ensuing evidence which they can watch on screen. It is a simple concept but I accept that a litigant giving important evidence from their home may feel isolated and quite alone for reasons including that they are not permitted to have anyone with them when giving evidence.  There is also the safeguard of being able to ensure that a witness at a fully attended hearing is not communicating with anyone else or being prompted whilst giving evidence in court. That is not always the case in audio-visual trials. 

17. Another important witness will be the mother’s treating psychologist. It is the consensus of the single expert witnesses that, in the absence of that psychologist having an appreciation of the body of evidence from protective services and the single expert reports generated for this case, the therapy received by the mother from the psychologist will not have been effective in ameliorating what Dr C describes are the borderline personality traits of the mother. Those entrenched behaviours are very significant in terms of parental capacity.

18. I have read the evidence in the case and now have a greater appreciation of Ms Agresta’s submissions. It is regrettable that I was not taken through certain parts of the evidence at the mention but, to be fair, it is also an impression obtained by reading all of the evidence over the weekend. Melbourne was not in lockdown at the time of the mention and the medium of the final hearing was left on a “wait and see basis”. No one sought a ruling at the mention or made an application to adjourn if a face to face hearing was not possible. Melbourne went into lockdown in the week following the mention but the inappropriateness of a virtual trial was not raised again until today.

19. I accept that, subjectively, it is reasonable for the mother to believe that the trial will not be conducted on a level playing field, or that she has a fair and equal chance of succeeding vis a vis the father, if her evidence and cross examination is received electronically and the father’s evidence and cross examination is received face to face. Put another way, whilst I expect and hope that justice could be done to both parents and the interests of the children, if the matter were to proceed as a hybrid of virtual and attended hearing days, I am satisfied that the mother genuinely believes that justice would not be done. That genuine belief is, of itself and of the facts of this particular case, sufficient to impugn the fairness of a virtual hearing.

20. I am satisfied that the matter should not proceed electronically.

21. The unfortunate consequence of the adjournment is that there will be a considerable delay before the final hearing can take place but there is nothing else I can do about that at this stage.   I had asked to hear from the private report writer at the very commencement of the trial but it would be inappropriate to do so now that the case cannot start for months.

22. Counsel for the husband makes an oral application for a costs certificate on the basis that the fact that the trial cannot proceed is not attributable to the neglect, default or improper act of any party to the proceedings.

23. Section 10 of the Federal Proceedings Costs Act 1981 provides, inter alia;

    10 Costs certificates—incomplete proceedings

    (1)  This section applies to the High Court, the Federal Court, the Family Court, the Federal Circuit Court and a court of a Territory.

    (2)  Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.

    (3)  Subject to this Act, where:

    (a)  the hearing of any proceedings in a court to which this section applies    is discontinued and a new hearing is ordered; and

    (b)  the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings;

    the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.

    (4)  The certificate that may be granted under subsection (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to that party in respect of such part as the Attorney‑General considers appropriate of any costs incurred by that party in relation to those proceedings.

    (5)  A reference in this section to proceedings in a court includes a reference to proceedings by way of an appeal to that court.

24. Counsel for the father informs the court that the father has taken a week’s leave from his work and employed extra child care assistance for the children of the marriage who reside with him and for whom he is the primary carer. An adjournment is a significant economic loss for him particularly is these difficult economic times.

25. I accept that the adjournment of the hearing is not through “the neglect, default or improper act of any party to the proceedings”. However, I do not accept that today’s hearing “is discontinued” within the meaning of s.10(3)(a) of the Federal Proceedings Costs Act 1981. The case is not yet started. I reject the submission of counsel for the respondent father that the case started at the mention on 15 July 2021. The final hearing was to commence this day and that has not occurred. No one has opened their case. No witness has been called. For an hour or so, I have been solely occupied with this application for an adjournment. It follows that no counsel is part heard. Regrettably for the father, I find that his financial losses are not compensable by the Attorney-General’s Department under the provisions of the Federal Proceedings Costs Act 1981.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       30 July 2021