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FAMILY LAW AMENDMENT ACT 2003 NO. 138, 2003 - SCHEDULE 2

- Use of audio links, video links etc. Part 1—Amendments

Family Law Act 1975

1 Subsection 4(1)

Insert:

"audio link" means facilities (for example, telephone facilities) that enable audio communication between persons in different places.

2 Subsection 4(1)

Insert:

"split court "has the meaning given by subsection 27(2).

3 Subsection 4(1)

Insert:

"video link" means facilities (for example, closed-circuit television facilities) that enable audio and visual communication between persons in different places.

4 Section 27

Repeal the section, substitute:

27 Place of sitting
(1)
Sittings of the Court must be held from time to time as required and the Court may sit at any place in Australia.

(2)
The Court, in respect of proceedings, may be constituted by 2 or more Judges sitting at the same time, but in different places in Australia, using video link, audio link or other appropriate means to facilitate the Court sitting ( split court ).

Note: Section 21B provides for the Chief Judge to make arrangements for the constitution of the Court for particular matters.

(3)
For the purpose of determining which law to apply in proceedings in which a split court is sitting, the Court is taken to be sitting at the place at which the presiding Judge is sitting.

5 Subsection 93A(2)

Omit "may be given by affidavit, by oral examination before the Family Court or a Judge or in such other manner as the Family Court may direct.", substitute:

may be given:

(a) by affidavit; or
(b) by oral examination before the Family Court or a Judge; or
(c) as provided for in Division 2 of Part XI.

6 Before section 97

Insert:

Division 1—General matters concerning procedure and evidence 7 At the end of Part XI

Add:

Division 2—Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc. 102C Testimony
(1)
The court or a Judge may, for the purposes of any proceedings, direct or allow testimony to be given by video link, audio link or other appropriate means.

Note: See also section 102F.

(2)
The testimony must be given on oath or affirmation unless:

(a) the person giving the testimony is in a foreign country; and
(b) either:
(i) the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceedings; or
(ii) the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceedings; and
(c) the court or a Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

(3)
If the testimony is given otherwise than on oath or affirmation, the court or a Judge must give the testimony such weight as the court or the Judge thinks fit in the circumstances.

(4)
The power conferred on the court or a Judge by subsection (1) may be exercised:

(a) on the application of a party to the proceedings concerned; or
(b) on the court's own initiative or on the Judge's own initiative, as the case may be.

(5)
This section applies whether the person giving testimony is in or outside Australia, but does not allow testimony to be given by a person who is in New Zealand.

Note: See the Evidence and Procedure (New Zealand) Act 1994 .

102D Appearance of persons
(1)
The court or a Judge may, for the purposes of any proceedings, direct or allow a person to appear before the court or the Judge by way of video link, audio link or other appropriate means.

Note: See also section 102F.

(2)
The power conferred on the court or a Judge by subsection (1) may be exercised:

(a) on the application of a party to the proceedings concerned; or
(b) on the court's own initiative or on the Judge's own initiative, as the case may be.

(3)
This section applies whether the person appearing is in or outside Australia, but does not apply if the person appearing is in New Zealand.

Note: See the Evidence and Procedure (New Zealand) Act 1994 .

102E Making of submissions
(1)
The court or a Judge may, for the purposes of any proceedings, direct or allow a person to make a submission to the court or the Judge by way of video link, audio link or other appropriate means.

Note: See also section 102F.

(2)
The power conferred on the court or a Judge by subsection (1) may be exercised:

(a) on the application of a party to the proceedings concerned; or
(b) on the court's own initiative or on the Judge's own initiative, as the case may be.

(3)
This section applies whether the person making the submission is in or outside Australia, but does not apply if the person making the submission is in New Zealand.

Note: See the Evidence and Procedure (New Zealand) Act 1994 .

102F Conditions for use of links

Video link

(1)
The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to a video link unless the court or the Judge is satisfied that the following conditions are met in relation to the video link:

(a) the courtroom is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom to see and hear the person (the remote person ) who is:
(i) giving the testimony; or
(ii) appearing; or
(iii) making the submission;
as the case may be, by way of the video link;
(b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom;
(c) such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the video link;
(d) such other conditions (if any) as are imposed by the court or a Judge.

(2)
The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

(a) the form of the video link; and
(b) the equipment, or class of equipment, used to establish the link; and
(c) the layout of cameras; and
(d) the standard of transmission; and
(e) the speed of transmission; and
(f) the quality of communication.

Audio link

(3)
The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to an audio link unless the court or a Judge is satisfied that the following conditions are met in relation to the audio link:

(a) the courtroom is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom to hear the person (the remote person ) who is:
(i) giving the testimony; or
(ii) appearing; or
(iii) making the submission;
as the case may be, by way of the audio link;
(b) the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the court or the Judge is sitting;
(c) such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the audio link;
(d) such other conditions (if any) as are imposed by the court or a Judge.

(4)
The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (3)(c) include conditions relating to:

(a) the form of the audio link; and
(b) the equipment, or class of equipment, used to establish the audio link; and
(c) the standard of transmission; and
(d) the speed of transmission; and
(e) the quality of communication.

Other appropriate means

(5)
The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to appropriate means other than video link or audio link unless the court or the Judge is satisfied that the following conditions are met in relation to that means:

(a) the conditions (if any) as are prescribed by the applicable Rules of Court in relation to that other appropriate means;
(b) such other conditions (if any) as are imposed by the court or the Judge.

Eligible persons

(6)
For the purposes of the application of this section to particular proceedings, eligible persons are such persons as the court or the Judge considers should be treated as eligible persons for the purposes of the proceedings.

Meaning of courtroom

(7)
In this section:

"courtroom" means:

(a) in relation to a Judge or a court that is not a split court—the courtroom or other place where the Judge or court is sitting; or
(b) in relation to a split court—each of the courtrooms or places where the Judges of the split court are sitting.

102G Putting documents to a person
(1)
This section applies if, in the course of an examination or appearance of a person by video link, audio link or other appropriate means in accordance with this Division, it is necessary to put a document to the person.

(2)
A court (that is not a split court) or a Judge may direct or allow the document to be put to the person:

(a) if the document is physically present in the courtroom or other place where the court or the Judge is sitting:
(i) by causing a copy of the document to be transmitted to the place where the person is located; and
(ii) by causing the transmitted copy to be put to the person; or
(b) if the document is physically present in the place where the person is located:
(i) by causing the document to be put to the person; and
(ii) by causing a copy of the document to be transmitted to the courtroom or other place where the court or the Judge is sitting.

(3)
A split court may direct or allow the document to be put to the person:

(a) if the document is physically present in a courtroom or other place where a Judge of the split court is sitting:
(i) by causing a copy of the document to be transmitted to the place where the person is located; and
(ii) by causing the transmitted copy to be put to the person; or
(b) if the document is physically present in the place where the person is located:
(i) by causing the document to be put to the person; and
(ii) by causing a copy of the document to be transmitted to each of the courtrooms or other places where the Judges of the split court are sitting.

102H Putting documents to a split court
(1)
If proceedings are before a split court and it is necessary or appropriate to put a document to the court, the court may direct or allow the document to be put to the court:

(a) if the document is physically present in a courtroom or other place where a Judge of the split court is sitting:
(i) by causing the document to be put to the Judge; and
(ii) by causing a copy of the document to be transmitted to each courtroom or other place where the other Judge or Judges of the split court are sitting; and
(iii) by causing a copy of the document to be transmitted to such other place where an eligible person is located as the court directs; or
(b) if the document is not physically present in a courtroom or other place where a Judge of the split court is sitting:
(i) by causing a copy of the document to be transmitted to each of the courtrooms or other places where the Judges of the split court are sitting; and
(ii) by causing a copy of the document to be transmitted to such other place where an eligible person is located as the court directs.

Eligible persons

(2)
For the purposes of the application of this section to particular proceedings, eligible persons are such persons as the court considers should be treated as eligible persons for the purposes of the proceedings.

102J Administration of oaths and affirmations
(1)
An oath to be sworn, or an affirmation to be made, by a person (the "remote person") who is to give testimony by video link, audio link or other appropriate means in accordance with this Division may be administered:

(a) by means of the video link or audio link, as the case may be, in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give testimony in the courtroom or other place where the court or the Judge is sitting; or
(b) if the court or the Judge allows another person who is present at the place where the remote person is located to administer the oath or affirmation—by that other person.

(2)
In this section:

"courtroom or other place where the court or the Judge is sitting", in relation to a split court, means the courtroom or other place where the presiding Judge of the split court is sitting.

102K Expenses
(1)
The court or a Judge may make such orders as the court or the Judge thinks just for the payment of expenses, including the court's expenses, incurred in connection with:

(a) the giving of testimony by video link, audio link or other appropriate means in accordance with this Division; or
(b) the appearance of a person by video link, audio link or other appropriate means in accordance with this Division; or
(c) the making of submissions by video link, audio link or other appropriate means in accordance with this Division; or
(d) the court sitting as a split court in accordance with this Division and Division 3.

(2)
Subsection (1) has effect subject to the regulations.

102L New Zealand proceedings
This Division does not affect the operation of the Evidence and Procedure (New Zealand) Act 1994 .

Division 3—Split court 102M Determination that there is to be a split court
(1)
If proceedings are to be heard and determined by 2 or more Judges, then a directing Judge may determine:

(a) that the Family Court is to be a split court; and
(b) which form of electronic communication is to be used to facilitate the proceedings.

(2)
In subsection (1):

"directing Judge" means:

(a) the Chief Justice; or
(b) the Presiding Judge in respect of the proceedings.

"electronic communication" means:

(a) video link; or
(b) audio link; or
(c) other appropriate means of communication.

102N Conditions for split court

Conditions to be satisfied before direction under section 102M may be given

(1)
A direction must not be made under subsection 102M(1) in respect of facilitating the sitting of a split court by a form of electronic communication unless the directing Judge is satisfied:

(a) that each courtroom is equipped with facilities that enable eligible persons present in the courtroom to communicate with eligible persons present in the other courtrooms:
(i) using the particular form of electronic communication; and
(ii) as required by the proceedings before the court; and
(b) that such conditions of a kind referred to in section 102F (if any) as are prescribed by the Rules of Court in relation to the particular form of electronic communication are met.

Judges may impose own conditions

(2)
Each Judge of the split court may, in relation to the Judge's courtroom, impose such other conditions in respect of the form of electronic communication to be used to facilitate the split court as the Judge considers appropriate.

Eligible persons

(3)
For the purposes of the application of this section to particular proceedings, eligible persons are such persons as a Judge of the split court considers should be treated as eligible persons for the purposes of the proceedings as facilitated in the Judge's courtroom.

(4)
In this section:

"communicate with", in relation to eligible persons, means:

(a) in the case of video link—seeing and hearing the eligible persons; and
(b) in the case of audio link—hearing the eligible persons; and
(c) in the case of other appropriate means of communication—as provided for in the applicable Rules of Court.

"courtroom" means the courtroom or other place where a Judge of the split court is sitting.

"electronic communication" means:

(a) video link; or
(b) audio link; or
(c) other appropriate means of communication.

8 After paragraph 123(1)(m)

Insert:

(ma) for the purposes of Divisions 2 and 3 of Part XI, providing for the conditions relating to the use of video links, audio links and other appropriate means of communication; and

Part 2—Application of amendments 9 Application of amendments

(1) The amendments made by Part 1 of this Schedule, other than the split court amendments, apply in relation to proceedings instituted in the court before, on or after the commencement of this item.
(2) The split court amendments made by Part 1 of this Schedule apply in relation to proceedings instituted in the Family Court after the commencement of this item.
(3) In this item:

electronic communication means:

(a) video link; or
(b) audio link; or
(c) other appropriate means of communication.

split court amendments means the amendments that relate to the use of electronic communication to facilitate:

(a) proceedings being heard by a split court; and
(b) a split court:
(i) hearing testimony; or
(ii) taking submissions; or
(iii) have persons appear before it; or
(iv) having a submission put to a person or to the court.


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