Crosbie and Crosbie - [2009] FamCA 1001

FAMILY COURT OF AUSTRALIA

CROSBIE & CROSBIE

[2009] FamCA 1001

FAMILY LAW - EVIDENCE - Expert evidence - Mother seeks the appointment of an adversarial expert witness to comment on the question of unacceptable risk posed to the child by the father - A single expert has already been appointed to comment on that issue - That part of the mother’s application is dismissed - Mother also seeks the appointment of a singe expert to examine and report upon the contents of the computer hard drives formerly within the matrimonial home that were surrendered to police - Orders made for the appointment of as a single expert to report upon the contents of the parties’ former computer hard drives
FAMILY LAW - PRACTICE AND PROCEDURE - Procedural orders made for the preparation of the matter for final hearing

Family Law Act 1975 (Cth)

Gemmell & Gemmell [2009] FamCA 29

APPLICANT:

Mr Crosbie

RESPONDENT:

Ms Crosbie

INDEPENDENT CHILDREN’S LAWYER:

Mr Boyd

FILE NUMBER:

NCC

2955

2008

DATE DELIVERED:

16 October 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

16 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamilton

SOLICITOR FOR THE APPLICANT:

Braye Cragg Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Wiggins Cheffings Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid, New South Wales

Orders

The trial of this matter is listed to continue before Justice Austin at 10:00 am on Tuesday, 9 March 2010, for a period of seven days.
The applicant shall pay the trial fee, or alternatively successfully secure a waiver of such fee, no later than one month from the date of these orders.
The applicant shall file and serve any Amended Application by Friday, 13 November 2009.
The respondent shall file and serve any Amended Response by Friday, 27 November 2009.
The parties, excluding the Independent Children’s Lawyer, shall:
a.Make disclosure pursuant to Rule 13.20(2) of the Family Law Rules and file a written undertaking as to disclosure pursuant to Rule 13.15 by Friday, 11 December 2009; and
b.Arrange for inspection and copying of any disclosed documents deemed relevant by Friday, 18 December 2009.
The parties and Independent Children’s Lawyer shall file and serve the affidavits upon which they rely by Friday, 29 January 2010.
Leave is granted to the applicant to file and serve affidavits of the following witnesses, confined to the issues disclosed in the Case Information form filed by the applicant father on 15 October 2009:
a.The applicant father;
b.Ms J Crosbie;
c.Mr B Crosbie;
d.Ms RS;
e.Mr SS;
f.Ms M; and
g.Ms T Crosbie.
Leave is granted to the respondent to file and serve affidavits of the following witnesses, confined to the issues disclosed in the Case Information form filed by the respondent mother on 12 October 2009:
a.The respondent mother;
b.Mr NS;
c.Ms GS;
d.Mr P;
e.Ms P;
f.Ms C; and
g.Dr R.
The witnesses called by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crosbie and Crosbie

Details

AGLC: Crosbie and Crosbie [2009] FamCA 1001
Case: [2009] FamCA 1001
Decision Date: 16 October 2009

CaseChat Overview and Summary

This matter concerned proceedings between the applicant father and the respondent mother, with Justice Austin presiding. The dispute involved the determination of various procedural and substantive issues within family law proceedings, including the appointment of a single expert witness and the management of evidence related to computer hard drives. The court also addressed an application by the respondent mother, which was subsequently dismissed.

The legal issues before the court included the proper procedure for disclosure and the filing of evidence by the parties and the Independent Children’s Lawyer. The court was required to determine the scope of affidavits to be filed, the appointment of a single expert witness to report on the contents of computer hard drives, and the instructions to be provided to that expert. Furthermore, the court had to consider the allocation of costs for a specific application and the process for preparing and tendering evidence, including the use of subpoenas.

Justice Austin made a series of orders to manage the proceedings. These included setting a trial date, requiring the applicant to pay the trial fee, and setting strict timelines for the filing and service of amended applications, responses, and affidavits. The court granted leave for specific witnesses to file affidavits, confined to issues raised in the parties' case information forms. Crucially, Mr. I of F Forensics was appointed as a single expert witness to examine computer hard drives for pornographic content, with the respondent mother tasked with providing the letter of instruction and facilitating the collection of the drives. The applicant mother was ordered to pay the expert's fees. The court also outlined the process for issuing subpoenas, with specific rights granted to the Independent Children’s Lawyer for photocopying and document compilation. Finally, the court dismissed the respondent mother's application for specific orders and ordered that each party bear their own costs for that application.

Orders

Orders of the court

The trial of this matter is listed to continue before Justice Austin at 10:00 am on Tuesday, 9 March 2010, for a period of seven days.

The applicant shall pay the trial fee, or alternatively successfully secure a waiver of such fee, no later than one month from the date of these orders.

The applicant shall file and serve any Amended Application by Friday, 13 November 2009.

The respondent shall file and serve any Amended Response by Friday, 27 November 2009.

The parties, excluding the Independent Children’s Lawyer, shall:

a. Make disclosure pursuant to Rule 13.20(2) of the Family Law Rules and file a written undertaking as to disclosure pursuant to Rule 13.15 by Friday, 11 December 2009; and

b. Arrange for inspection and copying of any disclosed documents deemed relevant by Friday, 18 December 2009.

The parties and Independent Children’s Lawyer shall file and serve the affidavits upon which they rely by Friday, 29 January 2010.

Leave is granted to the applicant to file and serve affidavits of the following witnesses, confined to the issues disclosed in the Case Information form filed by the applicant father on 15 October 2009:

a. The applicant father;

b. Ms J Crosbie;

c. Mr B Crosbie;

d. Ms RS;

e. Mr SS;

f. Ms M; and

g. Ms T Crosbie.

Leave is granted to the respondent to file and serve affidavits of the following witnesses, confined to the issues disclosed in the Case Information form filed by the respondent mother on 12 October 2009:

a. The respondent mother;

b. Mr NS;

c. Ms GS;

d. Mr P;

e. Ms P;

f. Ms C; and

g. Dr R.

The witnesses called by the Independent Children’s Lawyer will be:

a. Dr G;

b. Dr A;

c. Dr N; and

d. Mr I.

10.

Except as already provided, the parties shall not file any further affidavits without the leave of the Court.

11.

The application by the respondent mother for Order 1 set out within her Application in a Case filed on 13 October 2009 is dismissed.

12.

Mr I of F Forensics is appointed as the single expert witness to prepare a report in relation to the pornographic content of computer hard drives contained on the computers formerly in the possession of the parties.

13.

The respondent mother is to forthwith furnish the single expert with a letter of instruction consistent with the letter of instruction comprising Annexure B to the Affidavit of Candace Diane Cheffings filed on 13 October 2009.

14.

The respondent mother’s solicitor shall forthwith collect and furnish the single expert with the computer hard drives currently held at the H Police Station for the expert’s examination and preparation of his report.

15.

The parties shall ensure that the single expert is furnished with copies of the provisions of Divisions 15.5.2 and 15.5.6 of the Family Law Rules.

16.

The applicant mother is to pay the fees of the single expert incidental to the preparation of his report and his attendance at Court for cross-examination.

17.

Leave is granted to the parties and the Independent Children’s Lawyer to issue subpoenae.

18.

Leave is granted to ONLY the Independent Children’s Lawyer to photocopy the documents produced on subpoena for the purposes of the following:

a. Provision of copy documents to any of the appointed single experts; and

b. Compilation of an agreed bundle of documents to be tendered in evidence.

19.

The Independent Children’s Lawyer shall confer with the parties and prepare an indexed and paginated bundle of documents, which are to be tendered in evidence, from the documents produced on subpoena, and provide a copy of that bundle to each of the parties by Friday, 26 February 2010.

20.

The parties shall by Friday, 26 February 2010, file with my Associate an Agreed List of Documents.

21.

The parties shall by Friday, 26 February 2010, file with my Associate, and serve upon one another, a Case Outline Document containing:

a) Chronology

b) Summary of argument

c) List of authorities

22.

If any party should default in the compliance with these orders any other party may contact my Associate, on notice to the other parties, to seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2).

23.

Liberty to restore the matter to the list on seven days notice.

24.

Each party shall bear his and her own costs of and incidental to the mother’s Application in a Case filed on 13 October 2009, determined today.

NOTATIONS

A. The parties have respectively filed forms prescribed under Rule 16A.03 consenting to the property adjustment aspect of the proceedings being determined by procedural application of Division 12A of Part VII of the Family Law Act 1975.

B. The procedural orders as to the appointment of Mr I as single expert subsume in entirety the mother’s application for Orders 2 and 3 set out in her Application in a Case filed on 13 October 2009.

C. The parties are agreed that the computer hard drives contained within the computers formerly residing within the former matrimonial home were not seized from the home by the police, but were rather surrendered by the mother to her then solicitors and subsequently passed by those solicitors to police at the H Police Station.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.