Hunter and Marsaille (No 2)

[2012] FamCA 1087

FAMILY COURT OF AUSTRALIA

HUNTER & MARSAILLE (NO 2) [2012] FamCA 1087

FAMILY LAW – EVIDENCE – Expert evidence – Where the parties cannot agree on a proposed expert to forensically analyse an audio recording produced by the Applicant Mother – Where the Independent Children's Lawyer has recommended the use of a specific expert

Family Law Rules 2004 (Cth)

APPLICANT: Ms Hunter

RESPONDENT: Mr Marsaille

INDEPENDENT CHILDREN’S LAWYER: Ms V. Khushal

FILE NUMBER: BRC 2477 of 2008

DATE DELIVERED: 21 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 December 2012

REPRESENTATION

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McGhee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bridges Family Law

Orders

1. The Registry cause three copies to be made of the audio recording which is Exhibit 34 in these proceedings and that one copy be provided to each of the parties.

2. Mr F of Pro Copy be appointed as the joint expert within the meaning of Division 15 of the Family Law Rules 2004 (Cth) for the purposes of:

   (a)       Determining if the audio recording in Exhibit 34 has been tampered with and/or otherwise modified, altered or changed; and/or

   (b)       Voice identification of the recording to ascertain if the words, “I tricked your doopee,” audible in that recording, were spoken by the Father.

3. The parties do all things necessary to facilitate the preparation of a forensic report by Mr F and more particularly:

   (a)       The Mother deliver to the Independent Children’s Lawyer by midday on 21 December 2012 any and all original equipment used to produce the recording, including but not limited to, the original voice recorder/recording device, the laptop/computer on which the audio recording was first downloaded and a copy of the CD which the Mother provided to the Court on 17 December 2012;

   (b)       The Mother co-operate with Mr F and immediately provide any and all additional information and/or equipment as may be requested by Mr F;

   (c)       The Father co-operate with Mr F and immediately provide samples of his voice recordings and/or any other information as may be requested by Mr F.

4. The Independent Children’s Lawyer be provided with a copy of the CCTV footage of the visit which took place at Relationships Australia on 21 August 2011 and a copy of the CD provided by the Mother to the Court on 17 December 2012 as a matter of urgency.

5. Both parties share equally the cost of obtaining the forensic report mentioned in paragraph 3 of these orders.

6. In the instructions provided by the Independent Children’s Lawyer to Mr F, it be requested that no investigation undertaken by Mr F ought corrupt the laptop computer or at least that steps be taken to preserve the file on the laptop computer before any interference occurs with that device.

7. The trial of this matter be adjourned for further hearing to 7 and 8 March 2013 before the Honourable Justice Kent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunter & Marsaille has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2477 of 2008

Ms Hunter

Applicant

And

Mr Marsaille

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. At the end of evidence last Friday, an issue arose as to an audio recording said to have been made of the supervised visit between the Respondent Father and G at Relationships Australia on 21 August 2011.

2. The audio recording was made on a recording device, and the Mother says that from that recording device, it was downloaded onto a laptop computer, and that the audio recording was produced by downloading from the laptop computer to a disc, which is now Exhibit 34 in the proceedings before me.

3. The Mother asserts the recording to be authentic, whilst the Father disputes the authenticity of the recording. The Father agitated that the Court should exercise its discretion under the relevant provisions of the Evidence Act 1995 (Cth) not to allow the recording to form part of the evidence, essentially on the contention that its prejudicial effect would outweigh its probative value. I am yet to rule on that application, because it seemed to me as of last Friday that the starting point might be to obtain expert evidence under Div 15 of the Family Law Rules 2004 (Cth) (“the Rules”) to determine, if possible, whether there is convincing expert evidence as to the authenticity of the recording, both as to it being a true and authentic recording, and as to it containing a recording of the Father’s voice speaking the relevant words in contention given that the Father sought that opportunity to test the evidence.

4. As of last Friday, the Father had completed his cross-examination, but was yet to undertake re-examination. At that point, I determined that it would be appropriate before any re-examination of the Father, and indeed further cross-examination perhaps of the Father but also of the Mother, that the Court receive the expert evidence referred to. In the event, the parties have been unable to reach agreement as to the terms of consent orders that ought be made pursuant to Div 15 of the Rules for the purpose of joint expert evidence, although it would appear that the issues have somewhat narrowed as a consequence of the interchanges this morning.

5. In the event, I am satisfied on the submissions of the Independent Children’s Lawyer that Mr F of H Pty Ltd would be a suitable joint expert within the meaning of the Rules. Whilst the Father raised objection to him on the basis that the Mother had apparently communicated with that expert, I am satisfied that instructions coming from the Independent Children’s Lawyer, which will inevitably include a requirement upon the expert to read and understand the relevant provisions of the expert evidence rules in Div 15, should obviate any suggestion that Mr F is somehow biased before he commences the exercise.

6. In any event, in the event that Mr F is required for cross-examination, the Father will have the opportunity to test his views, if necessary, in the further hearing of the trial.

7. The Independent Children’s Lawyer had prepared terms of proposed orders absent the name of the expert and some other matters contained in that draft seem to be in issue, in particular from the Mother’s side; she sought an order that she provide directly to the expert the relevant materials referred to in the order; however, I am satisfied that it is appropriate that the Mother deliver to the Independent Children’s Lawyer the relevant materials as provided for in the order for the purpose of the Independent Children’s Lawyer instructing and briefing the relevant expert. The parties will be given copies of the relevant instructions, as is the usual course in consequence of Div 15 of the Rules.

8. I therefore make the orders as set out at the commencement of these reasons.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 December 2012.

Associate: 

Date:  21 December 2012