JUDGE DISALLOWED REMOTE HEARING AMIDST THE PANDEMIC
Lainhart & Ellinson [2020] FCCA 1877 (7 May 2020)
This case involves a proceeding relating to the parties’ future care arrangement for their child as well as relating to property relief, the applicant seek to conduct a remote hearing due to Covid-19.
Facts:
The proceedings relate to future care arrangements for a young child, X. The proceedings also involves property relief. That aspect of the matter is suggested to be somewhat complex, involving voluminous documents from various corners of the world which will require significant address during cross-examination.
In this case, both parties indicate their desire to conclude their business before the Court. Both parties submit to a remote or “virtual” hearing. However, that is with the caveat, if it might be so described, from the wife’s perspective that the consent is offered on the basis that it is a necessity to achieve that end. However, that is not the end of the issue.
The factors that might be said to obviate against a remote hearing include: "1. there is an Independent Children’s Lawyer, and thus multiple parties, not merely the parties themselves; 2. there is voluminous material to be tendered and put to witnesses". There are, accordingly, practical difficulties of how that might occur.
Issue: Will trying to press on with the remote hearing due to COVID-19 afford due process and procedural justice to both parties, and, most importantly, address appropriately and fairly the needs and interests of X?
Law:
- Section 69 of the Federal Circuit Court Act 1976 (“Conditions for use of video links and audio links”) (Cth) compels that such services are only used and employed when it is possible for all parties to see and hear all witnesses.
- Each decision that is made in a case must, as Forrest J discussed in Gordon & Gordon [2015] FamCA 616, (paragraphs 3 to 5 thereof) be infused with and informed by consideration of the child’s best interests as paramount.
Analysis:
A fundamental matter to address in determining whether to proceed with a remote hearing must be, by reference to the above appellate decision, the importance and nature of the issues to be determined.
The court must have regard to the scale and scope of the hearing. It is a four-day hearing, with extensive cross-examination. It is simply not satisfied, having regard to the factual and evidential issues in this case, that a fair hearing could be conducted by remote hearing.
Conclusion: Due to the fact that the proceedings in the case at bar consists of several parties and presentation of numerous witnesses and evidence, the court is satisfied that remote hearing will not result to a fair trial. Hence, the court will vacate the scheduled remote hearing.