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 of 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

1. 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.

2. 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.

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

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

5. 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.

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

7. 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.

8. 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.

9. 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.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2955 of 2008

MR CROSBIE

Applicant

And

MS CROSBIE

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

1. Before the Court for determination today is an Application in a Case filed on 13 October 2009 by the mother, which effectively seeks two things.  Firstly, the mother seeks the appointment of Dr E as an adversarial expert witness to offer expert evidence in relation to the question of unacceptable risk posed to the child by the father.  Secondly, the mother seeks the appointment of Mr I as a single expert to examine and report upon the contents of the computer hard drives formerly within the matrimonial home that were surrendered to police by the mother through her solicitor.

2. Dealing firstly with the question of the appointment of Dr E as an adversarial expert, I note that the parties conduct these proceedings on the mutual basis that the following experts have already been appointed as single experts to report on issues relevant to the parenting orders:

   a)Dr A, Psychiatrist;

   b)Dr N, Registered Psychologist; and

   c)Dr G, who has been appointed pursuant to Chapter 15 of the Family Law Rules.

3. The mother is apparently disaffected by at least the evidence offered by Dr A in his report, which report is annexed to an affidavit filed on 18 March 2009 and which will be read during the substantive hearing of these proceedings.

4. The mother contends that Dr E, who has produced a report dated 7 July 2008, which was tendered as Exhibit M1 on this Application, offers insight into the allegedly unacceptable risk posed to the children by the father from a different perspective from that offered in the report of Dr A.

5. The mother’s counsel and counsel for the Independent Children’s Lawyer have both fairly conceded that, to this point in time, no questions have been posed to Dr A pursuant to Rule 16.65, nor have they convened a conference with Dr A pursuant to Rule 16.64B of the Family Law Rules. 

6. The appointment of an adversarial expert in circumstances where a single expert has already been appointed by the Court has been the subject of recent comment by Her Honour Justice Ryan in Gemmell & Gemmell [2009] FamCA 29.  Her Honour holds in that case that ordinarily the appointment of an adversarial expert ought not be considered in circumstances where a single expert already exists, unless the parties have already availed themselves of those rules to which I have adverted.

7. Having heard the submissions of the parties, my view is that the application for the appointment of Dr E as an adversarial expert is precipitous.  It would be more appropriate for the mother and the Independent Children’s Lawyer to explore any issues of concern they have with the evidence of Dr A by posing questions to that doctor, or by convening a conclave with him, even if that conclave were to involve the shadow experts relied upon by the mother or the Independent Children’s Lawyer.

8. Having heard my preliminary views about that issue, the mother asked for that aspect of her Application in a Case to be adjourned, which altered position enjoyed the consent of the Independent Children’s Lawyer. The father maintains his position that the Application, at least in that regard, should be dismissed.

9. I accept the submission of the father, and accordingly I dismiss the application of the mother for the order set out in paragraph one of the Application in a Case filed on 13 October 2009.

10. As to the second aspect of the mother’s Application in a Case, the evidence adduced by the mother through the affidavit of Candice Diane Cheffings filed on 13 October 2009, which is read in support of the Application, satisfies me that the investigation of the computer hard drives by a single expert will potentially lead to the adducement of relevant evidence in these parenting proceedings. 

11. It may be, as the father’s counsel submits, that the evidence comes to nothing.  If, however, the evidence does come to something it plainly has the potential to be relevant and to influence the findings that will be made by the Court in respect of parenting orders that ought be made pursuant to Part VII of the Family Law Act 1975.

12. No submission has been made by the father that the person proposed as the single expert, namely Mr I, is an inappropriately qualified person to accept such an appointment. Nor has any submission been made to the effect that the ambit of the instructions to be furnished to that single expert is erroneous or inappropriate.

13. For those reasons, I grant that aspect of the mother’s Application in a Case, which solicits the appointment of Mr I as a single expert to report upon the contents of the parties’ former computer hard drives.

14. I will make appropriate orders as part of the other procedural orders that I will shortly make to bring this matter to trial.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  16 October 2009