WALDERS & MCAULIFFE - [2020] FCCA 1541

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALDERS & MCAULIFFE

[2020] FCCA 1541

Catchwords:
FAMILY LAW – Practice and procedure – Change in operational requirements due to COVID-19 – Whether hearing can properly and safely proceed by way of remote hearing – adjournment of proceedings.

Legislation:

Family Law Act 1975 (Cth), s.90RD

Cases cited:

Justice Hamill in Rakielbakhour v DPP [2020] NSWSC 323

R & Macdonald; R & Edward Obeid; R & Moses Obeid (No 11) [2020] NSWSC 382

Capic & Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486

Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583

Applicant:

MR WALDERS

Respondent:

MR MCAULIFFE

File Number:

SYC 8000 of 2018

Judgment of:

Judge Harman

Hearing date:

7 May 2020

Date of Last Submission:

7 May 2020

Delivered at:

Parramatta

Delivered on:

7 May 2020

REPRESENTATION

No appearance by the Applicant

Counsel for the Respondent:

Mr Kerr

Solicitors for the Respondent:

Lane & Lane

ORDERS

Vacate the scheduled hearing of these proceedings listed 15 – 18 June 2020.
The matter is adjourned for further mention and directions to 26 June 2020 at 9:30am.
Note: The purpose of a vacated trial and adjournment is to allow events to unfold as regards the present COVID-19 pandemic and any variations in NSW public health regulations and/or Court policies as might permit an in person to then proceed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 8000 of 2018

MR WALDERS

Applicant

And

MR MCAULIFFE

Respondent

REASONS FOR JUDGMENT

These proceedings are listed today for call over. The matter was previously allocated trial dates of four days commencing 15 June 2020.
Upon the matter being called, counsel appears for and on behalf of the respondent. There is no appearance by the applicant. I do not record that as criticism. There may be any number of reasons why it is so.
The purpose of the matter being listed for call over is to determine whether the hearing is ready to proceed and, if so, whether the hearing can properly and safely proceed by way of remote hearing utilising the Microsoft Teams platform.
I make clear from the outset that I am not satisfied that the matter can or should proceed by remote hearing. That is not a proposition that is in any way cavilled with by counsel for the respondent. Indeed, it is a proposition advanced and adopted by counsel for the respondent.
The subject matter of the proceedings is a determination of jurisdiction under section 90RD of the Family Law Act 1975 (Cth) as to whether a de facto relationship has ever subsisted between the parties and, if so, whether that relationship has subsisted for the requisite time and terminated no later than would permit an application to be made for relief under Part VIIIAB of the Act. There is clearly significant factual controversy between the parties including as to whether any of these propositions would be so.
The conduct of the hearing would be hampered by, on its face, the absence of recent material filed by either party. Nothing has been filed since the proceedings were commenced in December 2018 and a Response filed in April 2019. However, on the basis that the determination relates to a past period of time it may well be, as is submitted by counsel for the respondent, that the material that was filed at the commencement of the proceedings, voluminous as it is, would permit the matter to now proceed.
The real issue with respect to the hearing proceeding arises as a consequence of the modality of hearing.
As is clear and apparent in these times, the COVID-19 pandemic has led to significant constrictions of and restrictions upon freedom of movement and public engagement. The areas of public engagement subject to such constrictions and restrictions includes Courts. Certainly, as has been opined, the continuation of the Rule of Law, as embodied within the administration of justice by Courts, is a fundamentally important factor at this time.[1]
[1] Justice Hamill in Rakielbakhour v DPP [2020] NSWSC 323 at [13]
The practical difficulties that can befall remote hearings are highlighted, for example by Fullerton J in R & Macdonald; R & Edward Obeid; R & Moses Obeid (No 11) [2020] NSWSC 382. The Court’s fundamental obligation is to ensure that the parties receive a fair trial with fair processes and procedures. The “virtual” courtroom or remote hearings can be impractical in some circumstances and yet is far more practical and efficacious in others.
Those realities were also acknowledged by Perram J in Capic & Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486, particularly, paragraphs 23-25 thereof wherein his Honour observed:
[23] If I could be sure that the crisis would have passed by October I would not hesitate to adjourn all the trials in my docket…[a view with which I concur] such that [25]…Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will.
His Honour concludes by observing that “these are not ordinary circumstances”.
In the particular and specific circumstances of the case before His Honour, it was determined that the trial would proceed, at least with the caveat, as His Honour observed, that if it became unworkable, then the matter could always be adjourned part heard.
The matters which should be taken into account in determining whether to proceed with a remote hearing might be gleaned from reference to the above authorities as well as authorities from comparable jurisdictions and the Court’s various practice directions and notices to the profession. This includes important and significant decisions of the Court of Appeal of England and Wales in Re A (Children)[2] and Re B (Children)[3] both dealing specifically with family law proceedings.
[2] Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 (“Re A (Children)”)
[3] Re B (Children)(Remote Hearing: Interim Care Order) [2020] EWCA Civ 584 (“Re B (Children)”)
Relevant considerations are all be focused upon producing a fair trial in which both parties can properly and fully participate and in which both parties have faith that they are listened to, heard, and have been afforded procedural justice.
In this case, there are myriad considerations which, to my mind, must obviate against the matter proceeding. Leaving aside the preparedness of material, (I accept that put by counsel for the respondent that it is sufficient to permit the controversy to be addressed), the following difficulties are apprehended:
a)The respondent suffers a disability. As a consequence, the respondent’s interests in the proceedings are represented by a litigation guardian;
b)The matter will require significant and voluminous cross-examination. It is no criticism, the issues in dispute are factual matters that can only be appropriately resolved through vigorous and zealous cross-examination. It is the role of the Court, as a tribunal of fact, and the role of counsel, to engage in that process so as to attempt to get to the truth;
c)There are significant issues of credit to be tried which will involve voluminous documents being put to witnesses;
d)The hearing of the matter by AV link will likely increase the hearing time required. The matter is fixed for four days. I am satisfied, in reality, it could probably be heard and determined in much less than that if an in person hearing. However, that reality is tempered by the use of a remote trial which, I am satisfied, would most assuredly see the matter run four days, possibly longer, leaving aside technical interruptions with which this list has been resplendent this morning, even though conducted by telephone rather than Microsoft Teams;
e)There would be real concerns and issues as to the ability of one or both parties engaging fully and properly in the process if it was conducted as a remote hearing, particularly analogous to those addressed in Re A (Children).
In light of the above matters and in light of guidance given by the above judgements, the interests of justice obviate against the matter proceeding by remote hearing at this time.
It is, in some respects, regrettable. The case has been on foot now for approximately 18 months. It is an application relating to jurisdiction. If the applicant is successful in establishing jurisdiction, the parties will then be involved in a further, somewhat protracted process of addressing a substantive dispute. If the respondent is successful in resisting the factual allegations of the applicant, the matter will be at an end.
Those issues are important but fall into the background by reference to the Court’s fundamental duty to justice, procedural fairness and due process.
As I am not satisfied a fair trial could be conducted by remote hearing, I thus have no alternative but to vacate the trial and adjourn the matter in the hope that it may be possible for an in person hearing to occur in the not too distant future.
Accordingly, I make orders as follows.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 12 June 2020