Wallace and Wagner and Anor

[2020] FCWA 63

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WALLACE and WAGNER & ANOR [2020] FCWA 63

CORAM: O'BRIEN J

HEARD: 17 APRIL 2020

DELIVERED : Ex tempore

FILE NO/S: PTW 168 of 2017

BETWEEN: MR WALLACE

Applicant

AND

MS WAGNER

Respondent

AND

LAW FIRM A

Intervener

Catchwords:

PRACTICE AND PROCEDURE - Dispute as to arrangements to be made for participation by witnesses at trial and effect of COVID-19.

SUBPOENAS - Where wife objects to subpoena to produce documents in relation to overseas travel in circumstances where her financial circumstances are relevant and in dispute - objection dismissed.

Legislation:

Family Court Act 1997 (WA)
Public Health Act 2016 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Moser
Respondent	:	Self Represented Litigant
Intervener	:	No appearance -excused
Independent Children's Lawyer	:	Ms Thomas

Solicitors:

Applicant	:	O'Sullivan Davies
Respondent	:	Self Represented Litigant
Intervener	:	No appearance -excused
Independent Children's Lawyer	:	Paterson & Dowding

Case(s) referred to in decision(s):

Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038

Mandic v Phillis (2005) 225 ALR 760

National Employers’ Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372

Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallace & Wagner has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1The parenting and financial proceedings between these parties are scheduled to proceed to trial on 22 July 2020. They have previously been delayed for reasons which are familiar to the parties and therefore do not need to be recounted.

2The matter came on this morning for a procedural hearing listed of the court’s own motion to prompt the parties to consider, well in advance of the listed trial, practical issues arising as a result of the COVID-19 pandemic.

3A brief outline of the relevant restrictions is appropriate.

COVID-19 restrictions

4On 23 March 2020, the Minister for Health declared a public-health state of emergency with effect from that day in respect of COVID-19, pursuant to s 167 of the Public Health Act 2016 (WA). On 31 March 2020, the relevant authority gave directions pursuant to various subsections of that Act prohibiting certain gatherings to prevent, control or abate the public health risk presented by COVID-19.

5Those prohibitions expressly do not apply to courts and tribunals, which are recognised as essential services.

6Nevertheless, all West Australian courts have taken steps to ensure that they continue to provide their services to the extent possible, and consistent with public health and safety.

7In this court, those steps have included conducting hearings by telephone or video link wherever possible, and restrictions on personal attendance at court premises. Where physical attendance at court by litigants or their lawyers is required or unavoidable, further steps to ensure appropriate social distancing both inside and outside the courtroom have been taken.

8The taking of those steps has enabled the court to continue to provide most of its services, albeit by different means.

9That said, specific difficulties potentially arise in relation to the conduct of trials.

10Firstly, the size and configuration of the available courtrooms means that if personal attendance at a hearing is required, social distancing requirements can only be met if there are no more than three persons at the bar table.

11Secondly, there are practical difficulties associated with the making of suitable arrangements for parties to participate in a trial by video link. There are a limited number of suitable service providers available to facilitate that participation, and in the current climate their availability particularly at short notice is limited. Many trials in this court are document intensive, and many require the production and tendering of documents produced under subpoena. That in turn presents obvious problems if parties are participating in a hearing remotely; while those problems are not always insurmountable, particularly where parties are competently represented and adequate plans are made, that is not always the case.

12Thirdly, legitimate forensic concerns can arise as to the appropriate conduct of the trial, and in particular the cross-examination of witnesses, where parties are not physically present in court. Those concerns may not be problematic where witnesses give evidence by video link, but can be insurmountable if it is proposed that a witness whose credibility is in issue should give evidence and be cross examined only by telephone. Those observations are not to overestimate the significance of demeanour in the assessment of credibility of a witness; they are, however, legitimately to be considered not only in that regard but also for the important purpose of ensuring that all parties apprehend that the trial has proceeded in a manner which is procedurally fair.

13Those difficulties, and others which might emerge in individual cases, must be taken into account in considering whether a trial should proceed, and if so how. The overarching responsibility of the court is to do justice between the parties. In a parenting case, the court must also consider the interests of the child as a factor to be taken into account in determining whether and how the trial should proceed.

The present case

14In this case, potential issues arise because:

(a)the mother and the children reside in [Regional Town A] pursuant to interim orders made by a magistrate [in] January 2020 after a hearing [in] December 2019;

(b)the proceedings involve two parties, an Independent Children’s Lawyer (“the ICL”), and an intervener – potentially raising issues as to whether all parties and counsel could be physically present for the purposes of trial while still maintaining appropriate social distancing in the court room;

(c)the mother’s partner lives in Regional Town A and has work commitments at the time the trial is listed. He is a witness for the mother and is required for cross examination;

(d)the maternal grandmother, who is a witness for the mother and is required for cross examination, is aged 66 and lives in Perth. The mother raises concerns as to whether she should be required to physically attend court in circumstances where she would contend that she is in a high risk category.

15All parties want the trial to proceed as scheduled. They are unable to agree certain matters as to how it should proceed.

Personal attendance by the mother

16Initially there appeared to be a dispute as to whether or not the mother should be required to attend personally for the purpose of trial. Over the course of the hearing this morning, after the mother was afforded the opportunity to file affidavit evidence in relation to that issue if she wished to do so, she confirmed that she no longer sought the opportunity to participate in the trial remotely. It is therefore common ground that the father, the mother and the ICL will personally attend at the trial.

Multiple parties

17The involvement in the case of two parties and an ICL does not, of itself, present insurmountable difficulties in terms of social distancing in the court room. The issue potentially arises only because of the involvement of the intervener.

18The intervener does not intend to take an active part in the trial. The firm in question has intervened only because it is owed fees by the mother. It has indicated no intention to examine witnesses or the like, and has intervened simply (at least as I perceive it) to ensure that its position as a creditor is not overlooked in the making of financial orders.

19In my view, arrangements can readily be made to permit whatever limited participation in the trial the intervener might seek without any issue of procedural fairness arising.

The mother’s partner

20The mother seeks that her partner, [Mr A], be permitted to give evidence by video link, as he lives in Regional Town A. She says he is unable to take time off work to attend the trial in person.

21The father seeks that Mr A attend personally for the purposes of cross examination. In correspondence with the court, his solicitors indicated that they required him to attend personally, pointing out that all parties have been aware of the trial listing since February and that other witnesses are able to make arrangements to take necessary time off work.

22With all due respect, that submission overlooked the fact that, at least in the correspondence between the parties and the court prior to the allocation of the trial date, Mr A’s unavailability for the period 16 July 2020 to 5 August 2020 was clearly flagged by the mother – as acknowledged in correspondence from the father’s solicitors to the court of 6 February 2020 and 11 February 2020. The trial date was nevertheless allocated because of the availability of all other relevant parties and for that matter the father’s counsel.

23The father’s counsel this morning has submitted that in the current climate it may well be that the requirement of the witness to attend personally at his work are different from what they might have been anticipated to be when the trial was listed, and that it may well be that he can make himself available for personal attendance. On balance, I do not consider that to be a persuasive argument.

24I note also the legislative requirement that in parenting proceedings the court must in deciding whether a particular step is to be taken consider whether the likely benefits of taking that step justify the costs of taking it, make appropriate use of technology, and deal with matters where appropriate without requiring the parties physical attendance at court.

25Were it to be suggested that Mr A participate in the hearing only by telephone, I would have some difficulty with that proposition given the issues that can arise in relation to assessment of credibility. That is not however what is proposed; it is proposed that he be permitted to give his evidence by video link and I will make an order permitting him to do so.

The maternal grandmother

26As already noted, the maternal grandmother is aged 66. The mother says that she also has health issues which her general practitioner has advised place her in a high risk category if exposed to COVID-19.

27The mother says that she should be permitted to give her evidence by video link.

28The father resists that, but simply says that he is not been provided with any evidence to support the mother’s claims as to the maternal grandmother’s health. Understandably perhaps, in the circumstances of this case, the father is not simply prepared to accept what is said at face value.

29The solution, with respect to the parties, is obvious.

30The witness [Ms B] will be permitted to give her evidence by video link on production to the court and the parties of a medical certificate from her treating doctor confirming that she would face health risks if required to personally attend court. To allow for possible changes in the COVID-19 situation between now and trial, that certificate must be provided no earlier than 1 July 2020.

The subpoena issue

31The other matter for determination is the mother’s objection to a subpoena issued at the request of the father to the Department of Home Affairs on 20 February 2020, seeking the production of documents relating to any travel overseas by the mother in the period 26 December 2019 to 9 January 2020. The mother objects to the subpoena on the basis that the documents sought were “private and irrelevant” and that the issue of a subpoena was a “fishing expedition”.

32The relevant legal principles may be briefly stated.

33The party seeking to uphold a subpoena issued at its request bears an onus to demonstrate that there is a legitimate forensic purpose in seeking the production of the documents identified in it.[1]

[1] Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38.

34A legitimate forensic purpose is usually established by demonstrating that the documents sought have apparent relevance to the issues in the substantive proceeding.[2]

[2] Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038.

35“Apparent relevance” refers to adjectival as distinct from substantive relevance,[3] often expressed as a consideration of whether the documentation called for could possibly throw light on the issue in the substantive proceedings.[4]

[3] National Employers’ Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372.

[4] Mandic v Phillis (2005) 225 ALR 760, [36].

36The father says that at the hearing before a magistrate on 19 December 2019 which led to interim orders being made permitting the mother’s relocation on an interim basis, the mother placed significant emphasis on what she submitted were her parlous financial circumstances, and that those financial circumstances were a relevant factor in her Honour’s decision. The father alleges that shortly thereafter the mother took an overseas holiday, giving the lie to the evidence she had given. He says also that requests for information were made direct to the mother and were not responded to.

37The ex tempore reasons delivered by the magistrate on 19 December 2019 include mention of a claim by the mother that if relocation was not approved on an interim basis that would cause her significant emotional and financial hardship, flowing on to the children. She and her partner would be unable to live in a family unit and would need to meet the expenses of two separate households, one in Regional Town A and one in Perth; the mother was, at the time, living with the maternal grandmother in a home which was about to be sold. On the mother’s case, she would effectively have nowhere to reside once the sale went through, would have insufficient income to meet rental payments, and would have to move in to live with her father.

38The learned magistrate summarised the position by saying that “the mother’s main case is that she and the children would suffer significant emotional and financial hardship if the application is not approved.”

39I note also that the issue of the subpoena in question was approved by the same magistrate in chambers following the delivery of her decision. It may reasonably be inferred that her Honour considered it appropriate to grant leave, being satisfied as to the potential relevance of the documents sought.

40Independent of any such inference, I am satisfied that the production of the documents sought could possibly throw light on an issue in the substantive proceedings.

41The mother’s objection to the subpoena will be dismissed.

Orders

1.The Respondent mother’s witness [Mr A] is at liberty to present for cross examination at trial by video link only.

2.Subject to production to the court and the parties of a medical certificate from her treating doctor confirming that she would face health risks if required to personally attend court, with such certificate not to be prepared or produced prior to 1 July 2020, the Respondent mother’s witness [Ms B] is at liberty to present for cross examination at trial by video link only.

3.The Respondent mother’s objection to the subpoena to produce documents issued at the request of the Applicant father to the Department of Home Affairs on 20 February 2020 is dismissed.

4.The parties, their solicitors, the Independent Children’s Lawyer and the single expert witness have leave to inspect and copy documents produced pursuant to the said subpoena.

These reasons are the reasons for decision delivered on 17 April 2020, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

20 APRIL 2020