Nagel & Clay
[2020] FamCA 326
•15 May 2020
FAMILY COURT OF AUSTRALIA
| NAGEL & CLAY | [2020] FamCA 326 |
| FAMILY LAW – PRACTICE AND PROCEDURE – digital recordings as evidence – where the mother exhibited approximately 8 hours of digital recordings to her Trial Affidavit – where the recordings portrayed changeovers between the parties – where her Trial Affidavit and the exhibited digital recordings were submitted to the single expert for the purpose of the preparation of an expert report – where her Trial Affidavit and the exhibited recordings were served upon the father’s solicitors and the single expert simultaneously – where the mother had not previously disclosed such to the father in accordance with the Family Law Rules 2004 (Cth) – where the father raised objection to such recordings being considered by the expert – where the expert considered the material before the father raised his objection but has not yet prepared the report pending final interviews with the parties and the children – where the father seeks orders that the recordings and the offending paragraphs of the mother’s Trial Affidavit which refer to and purport to exhibit the recordings be excluded – where the father seeks orders that the expert be discharged on the basis of a reasonable apprehension of bias and that a fresh expert be appointed – where the mother seeks the father’s application be dismissed – where the Court was provided with a sample of the recordings by both parties. FAMILY LAW – PRACTICE AND PROCEDURE – Advance Ruling – where the Court has the power to make an advance ruling – where Division 12A of Part VII of the Family Law Act 1975 (Cth) and s 192A of the Evidence Act 1995 (Cth) are considered – whether the Court should make an advance ruling on the admissibility or exclusion of the recordings by reference to Rule 13.14 of the Family Law Rules 2004 (Cth), the provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth), or ss 135 and 138 of the Evidence Act 1995 (Cth) – where case management considerations are taken into account – where discharge of expert would involve children in fresh round of interviews – where expert is well advanced in process of preparing a report – where it was found to be appropriate to make an advance ruling. FAMILY LAW – EVIDENCE – whether digital recordings should be excluded – where it was held that small sections of the recordings are relevant but have a low probative value and low importance in the proceedings – where mother’s breach of the Rules disrupted the orderly production of expert evidence – where discretion was exercised to exclude the evidence under s 69ZX(2)(g) and (h) – where it is inappropriate in the circumstances to make findings for the purposes of s 138 of the Evidence Act 1995 as to illegally or improperly obtained evidence by the mother close to final hearing– where probative value of digital recordings substantially outweighed danger they might cause or result in undue waste of time within s 135 of the Evidence Act 1995 – orders made for the offending paragraphs of the mother’s Trial Affidavit be struck out together with the recordings. FAMILY LAW – EVIDENCE – Expert Evidence – Apprehended bias – whether the principles of apprehended bias can apply to the process of producing the report of a single expert – where it was held that a rational and reasonable assessment by the hypothetical lay observer would be unable to find there is any reasonable apprehension of bias – where discharge of expert would involve children in fresh round of interviews – where expert is well advanced in process of preparing a report – single expert directed to ignore the struck out material and continue preparing the expert report. |
| Bankruptcy Act 1966 (Cth) s 81 Family Law Rules 2004 (Cth) rr 1.04, 1.06, 1.07, 1.08(1), 13.01, 13.07, 13.14, 15.13(1)(a), 15.44, 15.54, 15.59(3)(a), 15.60(1), 15.63, 15.64B, 15.65, 16.02(2), 16.04(a)(vi), 16.08 |
| Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Australian Securities and Investments Commission, in the matter ofWhitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324 Bass & Bass (2008) FLC 93-366 Beslic v MLC Ltd [2015] NSWSC 908 Blaze & Anor & Grady and Anor (2015) 54 Fam LR 172 Bloomfield & Grainger and Anor (No 4) [2017] FamCA 723 Britt & Britt (2017) FLC 93-764 Cadenet & Behrendt (No. 3) [2019] FamCA 827 CDJ v VAJ (1998) 197 CLR 172 Danell & Saller (2015) 54 Fam LR 416 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 Doughty-Cowell v Kyriazis [2018] VSCA 216 Duarte and Anor & Morse (2019) FLC 93-902 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 Hazan & Elias (2011) 45 Fam LR 475 Huffman & Gorman (No. 2) [2014] FamCA 1077 IMM v The Queen (2016) 257 CLR 300 Isbester v Knox City Council (2015) 255 CLR 135 Johnson & Johnson (2000) 201 CLR 488 Kadir v The Queen; Grech v The Queen (2020) 375 ALR 80 Kernot v Matson (2008) 39 Fam LR 695 Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953 LGM v CAM (2011) FLC 93-481 Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg (No 2) [2001] 1 WLR 2337 M v M (1988) 166 CLR 69 Maldera v Orbel (2014) 52 FamLR 24 Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705 Masoud & Masoud (2016) FLC 93-689 Masri & Masri [2017] FamCA 539 Minister for Immigration And Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Mitford & Mitfordand Ors [2018] FamCA 1067 Morrison & Morrison (1995) FLC 92-573 NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000; Arnold v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120 Nagel & Clay [2019] FamCA 406 Nepean & Treloar [2010] FamCA 781 Parker v Comptroller-General of Customs (2007) 243 ALR 574 Parker v Comptroller-General of Customs (2009) 83 ALJR 494 Pownall v Conlan Management Pty Limited (1995) 12 WAR 370 Reynolds v Reynolds and Another (1973) 1 ALR 318 Smits v Roach (2006) 227 CLR 423 Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349 Thompson & Platt [2016] FamCA 1116 TWN & PAQ (2005) FLC 93-230 Vallans & Vallans (2019) 60 Fam LR 193 Waterman & Waterman (2017) FLC 93-762 Weiss & Arnold [2010] FamCA 270 Whitehouse v Jordan [1981] 1 WLR 246 |
| APPLICANT: | Mr Nagel |
| RESPONDENT: | Ms Clay |
| INDEPENDENT CHILDREN’S LAWYER: | Sydney West Family Lawyers |
| FILE NUMBER: | SYC | 7861 | of | 2015 |
| DATE DELIVERED: | 15 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 4 March 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney SC |
| SOLICITOR FOR THE APPLICANT: | Pearson Emerson Meyer Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr White SC |
| SOLICITOR FOR THE RESPONDENT: | Michael Conley Lawyers |
| SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Naidovski |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sydney West Family Lawyers |
Orders
That the following material be struck out of the Trial Affidavit affirmed and filed by the mother on 20 December 2019:
(a) Paragraphs 137, 139, 141, 230, 231, 256, 349, 352 and 407 to the extent that they refer to and purport to exhibit the recordings contained in the USB drives exhibited at pages 1143 and 1146 – 1148 of the Tender Bundle to that Affidavit; and
(b) Pages 1143 and 1146 – 1148 of the Tender Bundle to that Affidavit, including the two USB drives referred to therein.
I DIRECT THAT pursuant to s 69ZX(1)(d), Dr J (“the single expert”) have no regard to the evidence struck out pursuant to Order 1.
The single expert finalise her report without any further undue delay.
That the parties comply with any further reasonable requests made by the single expert, including attendance at further interviews, for the purpose of enabling the single expert to complete her report.
The Independent Children’s Lawyer provide a copy of these Orders to the single expert. For the avoidance of doubt, a copy of these reasons is not to be provided to the single expert.
The Application in a Case filed by the father on 13 February 2020 otherwise be dismissed.
The Response of the mother filed on 18 February 2020 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nagel & Clay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
CORRIGENDUM
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7861 of 2015
| Mr Nagel |
Applicant
And
| Ms Clay |
Respondent
CORAM: Harper J
DATE OF ORDERS: 15 May 2020
WHERE MADE: Sydney
CORRIGENDUM 26 May 2020
A. The Reasons for Judgment delivered on 15 May 2020 are amended pursuant to r 17.02A(b) of the Family Law Rules 2004 (Cth) by the deletion of the word “not” from the last sentence of paragraph one hundred and thirty one (131) as attached.
I certify that the preceding one (1) paragraph “A” is a true copy of the Corrigendum of the Reasons for Judgment of the Honourable Justice Harper herein.
Associate:
Date: 26 May 2020
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7861 of 2015
| Mr Nagel |
Applicant
And
| Ms Clay |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property proceedings between the applicant father Mr Nagel (“the father”) and the respondent mother Ms Clay (“the mother”). The children the subject of the parenting dispute are B born … 2008, C born … 2011 and D born … 2013 (together referred to as “the children”).
The proceedings are currently listed for final hearing commencing on 27 July 2020 with an estimate of 5 days.
The different final proposals of the parties on the parenting issues can be broadly summarised as follows. In his Further Amended Initiating Application filed on 20 December 2019, the father seeks an order for equal shared parental responsibility, and that the children live with the parents equally on a week about basis. The mother seeks in her Further Amended Response also filed on 20 December 2019, an order allocating sole parental responsibility to her for decisions about major long-term issues in relation to the children, with further orders that she explain her decisions to the father by email and consult about health care and medical emergencies. She also seeks that the children live with her and spend time with the father in a graduating arrangement, progressing from two nights overnight each fortnight, to five nights overnight each fortnight.
The parties have filed an imposing array of evidence. The father filed a Consolidated Trial Affidavit (“His Trial Affidavit”) on 20 December 2019, running to 71 pages, and 310 paragraphs, some of which are divided into numerous sub-paragraphs. He exhibits numerous documents to his Trial Affidavit. The mother filed a Consolidated Trial Affidavit on 20 December 2019 (“Her Trial Affidavit”) running to 583 paragraphs, and 135 pages, plus some schedules. Her Trial Affidavit makes reference to a Bundle of exhibited documents of some 1882 pages. The proceedings involve both parenting and property issues, which may partly explain the volume of material. The evidentiary thoroughness with which each parent wants to put the other to the sword, and triumph in the litigation, might almost be impressive if it did not also measure the depth of bitter conflict into which these parents have plunged their children for nearly five years.
Having said that, it is important to stress that, although the mother makes some allegations of historical abuse at the hands of the father, neither party points to any present risk factors. The children are spending overnight time with both parents. Both parties seek orders that would, if made, see the children spend overnight unsupervised time with them both.
As explained more fully below, after the parties filed and served their respective Trial Affidavits, a serious dispute erupted between them about material in the form of digital recordings in the nature of footage, exhibited to the mother’s Trial Affidavit. This material was submitted by her to a single expert for the purpose of the preparation of an expert report. However, there was no dispute the material had not been previously disclosed by the mother to the father in accordance with the Family Law Rules 2004 (Cth) (“the Rules”). The father raised objection to this material being considered by the expert. Nonetheless, it appears the single expert considered the material before the father raised his objection. Although no report has so far been finalised and issued to the parties, the father seeks orders, by an Application in a Case filed 13 February 2020, that the offending material be excluded as evidence in the proceedings, the expert be discharged and a fresh expert be appointed. This judgment relates to that Application in a Case.
It is necessary to record that this judgment is being delivered in a climate of great uncertainty, as a result of the global pandemic of COVID-19. Numerous urgent operational changes have been made to the functioning of the Court. The status of final hearing dates is subject to frequent unavoidable variation. I consider it appropriate nonetheless to deliver judgment. The parties require resolution of the dispute which directly affects the material upon which the opinion of the presently retained single expert may be based. At the date of delivering this judgment it remains to be seen whether the disruption caused by the pandemic will cause any change to the final hearing dates. The parties had also arranged a private mediation to take place in April 2020.
The way in which the subject dispute evolved can be explained by the following chronology of events. Unless otherwise stated, these facts are undisputed.
Relevant Chronology
A Family Report was prepared by Dr E on 1 June 2016. I refer to my ex tempore reasons for judgment of 20 June 2019 being Nagel & Clay [2019] FamCA 406, where I made orders for an updating Family Report to be prepared by a fresh, suitably qualified expert to be jointly decided upon by the parties. In accordance with those orders, Dr J was appointed as single expert (“the expert”) with interviews to be carried out on 9, 10, 16 & 17 January 2020.
Further orders were made on 5 November 2019 setting the matter down for final hearing, commencing on 27 July 2020 with an estimate of 5 days, and for the parties to prepare, file and serve their consolidated Trial Affidavits together with any Amended Initiating Application or Response, and any lay witness Affidavits they sought to rely upon by close of registry filing on 20 December 2019.
The orders further granted the parties leave to provide their Trial Affidavits to the expert for the purpose of preparing her report.
The mother contends that on 20 December 2019, her evidence in chief and exhibits were served on the father’s solicitors at 5:30 pm. They were also delivered to the expert simultaneously.
The mother’s Trial Affidavit exhibits two electronic storage devices containing digital recordings (“the recordings”) being:
a)A visual recording without audio, of changeovers which occurred at the K Street residence (referred to in [407] of her Trial Affidavit and at page 1443 of the Tender Bundle to that Affidavit); and
b)Recordings taken during the period of 2012 to 2015, 2017 and 2019 (referred to in [349] of her Trial Affidavit and at pages 1146 to 1148 of the Tender Bundle to that Affidavit).
The recordings in total run to about 8 hours. The mother categorises the recordings as follows in her Written Submissions dated 27 February 2020 at [13]:
a. recordings made while the parties lived together at K Street;
b. recordings of a telephone conversation;
c. recordings of conversations between the parties at handover outside the father’s home at L Street;
d. recordings of conversations between the parties at handover in the courtyard at the front of L Street;
e. recordings at or around handover of conversations between the mother and the children only at L Street;
f. recordings at or around handover between the mother and the children only and in the absence of the father;
g. recordings at or around handover at K Street which have no audio and so record no conversations.
Some of the recordings were also transcribed by a professional transcription company and exhibited to the Affidavit of the mother’s solicitor, Ms Louisa Lo-Cao filed on 20 December 2019.
The mother’s Trial Affidavit was quite explicit about her motivations for making the recordings. There was no dispute about this. She states several times that she made the recordings because she believed they would assist her in obtaining the parenting orders she wanted. She made this point generally and specifically in relation to changeovers.
In particular, in her Trial Affidavit the mother states at [349]:
From early November 2017, I began recording some of the changeovers. Up until the November 2017 orders, the father's behaviour at changeovers was captured by the CCTV outside the K Street property when he dropped the children off. However, there was no corroborative evidence with respect to his behaviour if I had to collect the children from his residence. This was especially in circumstances where the November 2017 orders provided for all changeovers to occur at the L Street property. I understood the recordings would assist me in relation to parenting orders that I was intending to seek. I recorded the changeovers with two methods, initially with my phone in my bag or in my pocket and then subsequently with a camera disguised as a button I purchased online. I did not record all the changeovers. The changeovers occurred during the period 8 November 2017 to 23 May 2019.
The father categorises the recordings as follows in his Written Submissions filed 26 February 2020:
3.1 audio/video recordings made by the wife prior to separation, apparently from March 2012 at or about the time of separation;
3.2 audio/video recordings made by the wife or her father of 'changeovers' on from November 2017 to May 2019; and
3.3 video recordings made by the wife using a CCTV facility installed at the former matrimonial home on 5 occasions from April to October 2017.
According to the mother, on 2 January 2020 when she attended upon the father’s residence, the father continuously requested the mother to cease recording in the presence of the children, and the mother has since stopped recording any changeovers.
The father contends that he only became aware of the recordings exhibited to the mother’s Trial Affidavit on 6 January 2020. Although the mother served her Trial Affidavit after 5:00 pm on Friday 20 December 2019, the father states that due to the Christmas period, he did not become aware of the content of the recordings until after obtaining the proposed exhibits to the mother’s Trial Affidavit on 6 January 2020, following the re-opening of his solicitor’s office. There was no dispute that the mother had not disclosed the existence of the recordings prior to serving her Trial Affidavit.
On 8 January 2020, the solicitors for the father requested that the expert refrain from review of the recordings until he had an opportunity to consider and review same, and according to the father, on the same day the solicitors for the mother advised the expert that they had no objection to her reviewing the material and condoned her reviewing the recordings as she saw fit.
On 9 January 2020, the father and his family members attended upon the expert and, on this occasion, according to the evidence of an email sent by the expert on 30 January 2020 and referred to below, the expert informed the father on 9 January 2020 that she had already reviewed the recordings exhibited to the mother’s Trial Affidavit.
On the following day, the mother and her family members attended upon the expert for an interview and on 13 January 2020, the expert informed the parties in writing that she proposed a further meeting with the parties on 30 and 31 January 2020 due to the complexity of the matter.
On 17 January 2020, the parties and the children met with the expert for an interview which took place over 4 hours and 40 minutes, according to the mother.
On 22 January 2020, the expert emailed the parties, requesting clarification as to whether the recordings were admissible or not.
On 24 January 2020, the solicitors for the father advised the expert that he had reviewed the recordings and was obtaining advice about them. The solicitors pointed out to the expert that:
a)The father maintained the recordings were inadmissible;
b)The recordings were exhibits to the mother’s Trial Affidavit only and had not been admitted into evidence; and
c)Since the parties had not jointly instructed the expert to consider the recordings, nor had the Court provided any direction as to their admissibility, it would be prudent for the expert not to take them into consideration at all, with a request not to do so until the father had obtained the benefit of legal advice.
On 30 January 2020, the expert confirmed to the parties in writing by email that she had reviewed all of the documents and all of the recordings prior to commencing her family report interviews. She said this was her usual practice and she had informed the father of this during his interview on 9 January 2020. The expert proposed to postpone her final interviews with the parties until she received guidance from the Court regarding the admissibility of the recordings. The further interviews scheduled to take place with the mother and father on 30 and 31 January 2020 did not occur.
From this chronology of events a number of salient factual matters should be emphasised. The recordings were known to the mother but not disclosed by her until she served her Trial Affidavit on 20 December 2019. The father found out about the recordings on 6 January 2020, and even though on 8 January 2020, the solicitors for the father requested that the expert refrain from review of the recordings until he had an opportunity to consider and review them, by then the expert had already reviewed the recordings. On 9 January 2020, the expert informed the father that she had already viewed the recordings. All parties knew at this point that there was a controversy about the recordings, but it seems clear the expert had reviewed them and the father knew this. The parties and the children then participated in interviews with the expert on 9, 10 and 17 January 2020. By no later than 22 January 2020 the expert was aware that the controversy was a dispute about the admissibility of the recordings. By 30 January 2020, the expert had formed the view that she could not complete her report until the question of the admissibility of the recordings had been resolved. Consequently, no final report has been prepared.
On 12 February 2020, the solicitors for the father wrote to the solicitors for the mother, taking objection to the recordings and proposed that the expert be discharged as single expert and that another expert, Mr M, be appointed in her place.
On 19 February 2020, according to the mother the expert informed the parties:
She has concerns that if another single expert is appointed, the children would each be subjected to yet another interview and observation process which will likely cause them undue stress. She also indicates that if the court requires her to continue as the single expert, there may be delay in completing her report as she will need to allocate time for the completion of the report.
Dr J issues [sic] an invoice which indicates the parties have incurred fees totalling $19,800 to date [Her Written Submissions dated 27 February 2020, page 6].
The Application of the father
On 13 February 2020, the father filed an Application in a Case. Stated summarily, he sought orders that:
a)Paragraphs 137, 139, 141, 230, 231, 256, 349, 352 and 407 be struck out of the mother’s Trial Affidavit to the extent that they refer to and purport to exhibit recordings contained in USB drives exhibited at pages 1146-1148 and 1443 of her Tender Bundle to that Affidavit and those pages be struck out from the Tender Bundle;
b)Orders 1 to 5 made on 31 July 2019 for the appointment of Dr J as a single expert be discharged;
c)Mr M, Clinical Psychologist be appointed single expert with interviews to take place on 5 and 6 May 2020;
d)The struck out paragraphs and pages to be redacted prior to being provided to Mr M;
e)The mother be restrained by injunction from causing or permitting Mr M to become privy to any of the struck out material including providing copies of such material;
f)The mother solely bear the costs incurred by Dr J in relation to her appointment as a single expert; and
g)The mother pay the father’s costs of and incidental to his Application.
The mother filed her Response on 18 February 2020 and sought that:
a)The father’s Application be dismissed;
b)The parties attend upon Dr J for final interviews;
c)The parties do all things necessary to jointly instruct Dr J so as to prepare a completed report by 27 March 2020; and
d)The father pay the mother’s costs of and incidental to this Application.
Material relied upon the parties
The father relied upon:
a)His Written Submissions filed on 26 February 2020;
b)His Addendum to his Written Submissions dated 3 March 2020;
c)His Application in a Case filed 13 February 2020;
d)His Affidavit sworn and filed 13 February 2020;
e)His Further Amended Initiating Application filed on 20 December 2019; and
f)His Consolidated Trial Affidavit sworn and filed 20 December 2019.
The mother relied upon:
a)Her Written Submissions dated 27 February 2020;
b)Her Response to the Application in a Case, filed on 18 February 2020;
c)Her Affidavit sworn and filed 18 February 2020;
d)Her Further Amended Response to the Initiating Application, filed on 20 December 2019;
e)Her Consolidated Trial Affidavit sworn and filed 20 December 2019; and
f)The Affidavit of Louisa Lo-Cao sworn 3 December 2019 and filed on 20 December 2019.
The Nature of the Recordings
Both parties accepted the Court would need to examine some of the recordings to decide the father’s application. Each provided a selection material.
The mother’s Trial Affidavit sworn and filed 20 December 2019 exhibited a USB with thirteen recordings identified as follows:
a)IMG_0693;
b)IMG_0026;
c)2018-05-18 02.28.44 door slam;
d)IMG_2362 - Nov 2017. Mr Clay;
e)IMG_2079;
f)IMG_7267;
g)IMG_3002;
h)IMG_2939;
i)RECO0002;
j)RECO0003;
k)ch02_20171019180457;
l)ch02_20171022180432; and
m)ch02_20171026180449.
Recordings 36(a) to (j) are exhibited to paragraph 349 of the mother’s Trial Affidavit (pages 1146 to 1148 of the Tender Bundle to that Affidavit) and recordings 36(k) to (m) are exhibited to paragraph 407 of the mother’s Trial Affidavit (page 1443 of the Tender Bundle to that Affidavit).
In addition, on 4 March 2020, I directed the father to provide a list of the material by way of sample which he relies upon for the purposes of his Application. He did so, and these were identified as being a) to j) and marked Exhibit “A” (as corrected by email). Electronic copies were provided for viewing by the Court, identified as follows:
a)2018-05-18 02.37.12;
b)2018-05-25 02.15.27;
c)2018-06-07 16.21.47;
d)2018-10-05 02.18.58;
e)2018-10-11;
f)2018-10-19 02.18.09;
g)IMG_0027;
h)IMG_0028;
i)ch02_20171026180829; and
j)ch03_20170921180630.
It should be pointed out here that Ms Lo-Cao gives evidence that she was given copies of the recordings by the mother and caused transcripts of the dialogue in almost all of them to be made. In the father’s application there is no challenge to these transcripts and he seeks no orders in respect of them. The challenge is to parts of the mother’s Trial Affidavit and the recordings exhibited in her Tender Bundle.
Consideration
The father argued the Court should make an advance ruling on the admissibility or exclusion of the recordings. Obviously, if the recordings are not admissible it becomes unnecessary to consider any discretionary bases to exclude them. The further limb of the father’s argument is that if the recordings are not admissible or are excluded, a fresh expert should be appointed.
The father made submissions about various statutory bases to make an advance ruling and exclude otherwise admissible evidence, in particular, the Rules, such as Rule 13.14, the provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”), and ss 135, 138 and 192A of the Evidence Act 1995 (Cth) (“the Evidence Act”).
As explained in the reasons which follow, pursuant to the Rules, the provisions of Division 12A of Part VII of the Act, I am satisfied an advance ruling should be made that specific paragraphs of the mother’s Trial Affidavit, impugned by the father, be struck out, together with the digital recordings exhibited thereto. Alternatively, I am satisfied I should refuse to admit them pursuant to s 135 of the Evidence Act. I am not satisfied that a fresh expert should be appointed. The present expert should complete the preparation of her report.
Advance Ruling
The father pointed to a range of powers in the Act, the Rules and the Evidence Act which permit an advance ruling on the admissibility of evidence, none of which the mother disputed. These powers generally share a case management quality. While there did not appear to be any dispute between the parties that the Court had a number of sources of discretion to make an advance ruling on evidence, there was a dispute as to whether any such discretion should be exercised in these proceedings in advance of the final hearing. In resolving this part of the debate for the purposes of this judgment, it is necessary to consider the relevant discretions in some detail, because, whilst there is overlap, they raise some differing issues.
In the Act, s 34(1) is expressed in very wide terms. It is a provision that confers power, in relation to matters in which the Family Court has jurisdiction, to make whatever orders and to issue writs of such kinds as it thinks appropriate. Beyond s 34(1), the provisions of Division 12A of Part VII of the Act are important. They set out principles for conducting child-related proceedings and give the Court wide powers regarding case management. The provisions of Division 12A reflect in part the well-recognised characterisation of parenting proceedings as different from inter partes proceedings in the ordinary sense, because the best interests of a child or children are the paramount consideration, as opposed to rights of parents: Reynolds v Reynolds and Another (1973) 1 ALR 318 at 323; M v M (1988) 166 CLR 69 at 76; Blaze & Anor & Grady & Anor (2015) 54 Fam LR 172 at [101]; Vallans & Vallans (2019) 60 Fam LR 193 at [39]. Division 12A gives the Court “extensive case management powers”: Duarte and Anor & Morse (2019) FLC 93-902 (“Duarte”) at [104].
The exercise of the powers and discretions in Division 12A are conditioned by the need to give effect to the principles set out in s 69ZN of the Act. In this sense the principles in s 69ZN are somewhat different to the objects and principles in s 60B which do no more than provide context, indicate the legislative purpose of Part VII, operate as an aid to construction of the Act and cannot be used to change the ordinary and clear meaning of s 60CC of the Act: Maldera v Orbel (2014) 52 FamLR 24 at [74]-[75]. Section 69ZN(1) is in mandatory terms and provides:
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b) in making other decisions about the conduct of child-related proceedings.
The principles are set out in sub-sections 69ZN(3), (4), (5) (6) and (7) (“the principles”). I have had regard to all the principles but the first, second and fifth principles seem to have particular relevance.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
….
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Section 69ZR(1) of the Act provides that if, at any time after the commencement of child-related proceedings and before making final orders, the Court considers that it may assist in the determination of the dispute between the parties, the Court may make a finding of fact in relation to the proceedings (s 69ZR(1)(a)) or determine a matter arising out of the proceedings (s 69ZR(1)(b)).
Section 69ZT of the Act precludes the application of large parts of the Evidence Act in child-related proceedings, unless the Court otherwise orders. However, this section does not apply to ss 135, 138 or 192A of the Evidence Act.
Specific powers to exclude evidence are found in s 69ZX(2) of the Act, which grants “extensive powers to make directions as to the matters about which the parties are to present evidence as well as by whom and in what manner that evidence is to be given” Duarte at [100]. Section 69ZX(1) makes clear that the powers granted in s 69ZX are a support in giving effect to the principles in s 69ZN.
There is no proscription on when the discretions in s 69ZX(2) may be exercised, and s 69ZR(1) supports the view they may be exercised at any time. The present debate directs attention particularly to s 69ZX(2)(g) which provides that “evidence in relation to a particular matter not be presented by a party”; and sub-paragraph (h) which provides that “evidence of a particular kind not be presented by a party”.
As I understood the submissions of the father, he argued these two sub-paragraphs of s 69ZX(2) create powers to exclude evidence separate to any similar powers in the Evidence Act. Section 69ZN(2) makes clear that in interpreting these provisions of Division 12A regard is to be had to the principles. In this sense the exercise of the powers to exclude evidence in s 69ZX(2)(g) and (h) would be conditioned, in part, by having regard to the need to give effect to the principles, rather than only by reference to the recognised grounds for the discretionary exclusion of evidence which apply under ss 135 or 138 of the Evidence Act. There may of course be some overlap. Understood in that way, the powers in s 69ZX(2)(g) and (h) are wide enough, in an appropriate case, to exclude evidence which is both admissible and not liable to be excluded on any of the recognised bases under ss 135 or 138. Giving effect to the principles as not something that expressly conditions the exercise of the discretion in s 192A of the Evidence Act to make an advance ruling, although in parenting proceedings reference to the principles could be made by this Court in forming an opinion that it is appropriate to make an advance ruling for the purposes of s 192A of the Evidence Act.
The paramountcy principle in child-related proceedings is fundamental. Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sub-section 64B(2) of the Act sets out what a parenting order may deal with. It is not clear that an order made in exercise of discretion under s 69ZX(2) for case management purposes is a parenting order. Nonetheless, I am asked to rule on the recordings as evidence in parenting proceedings in which the best interests of the children are the paramount consideration. As the mother submitted, in CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 at [87] the High Court held the Full Court was bound to have regard to the effect of further evidence “may have in determining whether the best interests of the child” required the setting aside, varying or upholding of a parenting order. In particular, at [192] Kirby J pointed out “the general obligation to approach any judicial decision which might impinge on the welfare of a child with at least a broad appreciation of the implications of the decision for that child's welfare is consistent with the longstanding parens patriae jurisdiction” of courts. Consequently, in my view, there is little doubt that in making an advance ruling on evidence in parenting proceedings, the paramountcy principle regarding the best interests of the children is something to which I must have regard.
When one turns to the Rules, sub-rule 15.13(1)(a) gives the Court a discretion to strike material out of an Affidavit if it is “inadmissible, unnecessary, irrelevant, unreasonably long, scandalous or argumentative”. Sub-rule 16.02(2) provides that at a compliance check, the Court may make orders about the further conduct of the case, while sub-rule 16.04(a)(vi) and Rule 16.08 give the Court power to make appropriate arrangements for the determination of interlocutory applications, inter alia, in a parenting case, applications to receive evidence.
These provisions of the Act and the Rules provide wide and ample discretions to rule upon evidence in advance of a final hearing for case management purposes.
The father also relied upon s 192A of the Evidence Act. As pointed out, this section is not excluded by s 69ZT of the Act, and applies in parenting cases. It confers a broad discretion on a court to make a ruling about particular evidence before the evidence is adduced in the proceedings. As Stevenson J pointed out in Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953 at [11] to [13] s 192A specifies only one test for the Court to exercise its power, namely that it “considers it appropriate to do so” and some good reason should be advanced in order that the court exercise discretion under s 192A, but it is not necessary to show “special circumstances” or to show that the circumstances are “out of the ordinary”.
Decisions in other jurisdictions make clear this discretion is also generally understood as a trial management tool. In NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000; Arnold v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120 (“NA & J Investments”) at [40] Biscoe J explained the purpose of s 192A as intended to empower the Court to make [an advance] ruling in the interests of "efficient trial management" citing Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 at [25]; Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349 at [14]. An advance ruling under s 192A is “a discretionary case management decision to be made in accordance with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute”.
Similarly, in the Federal Court of Australia, Gleeson J in Australian Securities and Investments Commission, in the matter ofWhitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324 (“Whitebox Trading”) at [21] held s 192A permits, but does not compel, advance rulings to be given on the admissibility of evidence and whether the Court should make an advance ruling is “a discretionary case management decision”: following NA & J Investments (supra) at [40] and Beslic v MLC Ltd [2015] NSWSC 908 at [33]. In the Federal Court, Gleeson J held that it directs attention to the overarching purpose identified in s 37M of the Federal Court of Australia Act1976 (Cth) (“the Federal Court of Australia Act”), to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
These authorities show that in determining the appropriateness of exercising the s 192A discretion, or finding a “good reason” to do so, overarching purposes in legislation constituting courts, or in their rules, are important considerations. The phraseology of the overriding purpose in NA & J Investments (supra) came from s 56 of the Civil Procedure Act2005 (NSW) and in Whitebox Trading, as noted by Gleeson J, from s 37M of the Federal Court of Australia Act. There is no similar statement of overarching purpose in the Act. However, in this Court, Rule 1.04 specifies a “main purpose” of the Rules, which is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. The Court is to apply the Rules to promote and achieve the main purpose: Rules 1.06 and 1.07 of the Rules. Thus any exercise of the discretions granted by sub-rules 15.13(1)(a), 16.02(2), 16.04(a)(vi) and 16.08 to hear and determine at an interlocutory stage the receipt of disputed evidence must, amongst other things, be directed to achieving the main purpose.
Case management considerations generally are clearly factors appropriately taken into account in considering whether to exercise the s 192A discretion. The main purpose of the Rules particularly, could appropriately be taken into account as a relevant factor in considering the exercise of the s 192A discretion in this Court. In my view, at least in the context of considering the exercise of that discretion, there is no material difference between the main purpose in the Rules and the overriding purpose referred to in NA & J Investments (supra) and Whitebox Trading (supra), applicable in other jurisdictions. The undesirability of delay and costs are factors which ordinarily should be taken into account in relation to case management: Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 at [102]. In parenting proceedings this general consideration finds statutory reinforcement by the mandatory wording of s 69ZN(7) which states in part “that proceedings are to be conducted without undue delay”.
There is little judicial commentary in this Court upon s 192A of the Evidence Act. In Bloomfield & Grainger and Anor (No 4) [2017] FamCA 723 (“Bloomfield”) Hogan J at [19]:
Authority seems to me to suggest that the matters to which consideration should be given in deciding whether to exercise the discretion afforded by s 192A in a particular case or at a particular time include:
a) whether giving the advance ruling is consistent with, promotes or enables efficient trial management;
b) whether there is a risk that assumptions have to be made about evidence proposed to be given at trial, which assumptions may prove not to be correct, given the way in which the case is, in fact, presented at trial;
c) whether there is a real benefit to be gained by making an advance ruling: that is, is it likely that time, effort and money might be saved if a ruling about the admissibility of the particular evidence is made now? Is it likely that unnecessary costs and/or delay may be avoided?;
d) whether, at the time the application is made for an advance ruling, the state of the preparedness of the case (whether by reference to the pleadings or the evidence already adduced or the procedural steps taken by parties) is such that the Court is able to discern the issues joined between the parties and, also, whether or not the evidence proposed to be adduced is likely to be relevant to such issues or not;
e) whether making an advance ruling in relation to the particular evidence is attended by the possibility of unfairness to a party;
f) whether there is a useful purpose in making the ruling sought: for example, an inability to discern the issues for determination at trial (because, for example, of the stage of the proceedings at the time the ruling is sought) or the absence of any indication or agreement about the evidence a party may propose to adduce, or the use to which a party may propose to put the evidence proposed to be adduced, may mitigate against the desirability of exercising the discretion to make an advance ruling;
g) whether giving an advance ruling at the time the same is sought is likely to achieve the efficient disposition of the final hearing because parties and their Counsel are put into the position of being able to prepare the case with greater certainty;
h) whether acceding to an application for an advance ruling could, in any way, give rise to the appearance that the trial judge is other than impartial vis-à-vis the parties.
Bloomfield was a financial case. The advance evidential ruling sought concerned the admissibility of the transcripts of various examinations conducted pursuant to s 81 of the Bankruptcy Act1966 (Cth). There are no authorities of which I am aware, considering the exercise of the s 192A discretion in parenting proceedings under Part VII of the Act.
Whichever power is relied upon for an advance ruling, it is clearly open to the Court to make such a ruling in parenting proceedings in an appropriate case, having regard to the paramountcy principle and the best interests of children, case management considerations, the main purpose of the Rules, the principles set out in Division 12A and the circumstances of the case. Factors such as those identified by Hogan J in Bloomfield will be relevant in parenting proceedings as well as property cases.
It seems to me that the requirement to give effect to the principles, while obligatory for the exercise of the discretions in s 69ZX(2), would also in parenting proceedings be appropriately taken into account in any exercise of discretion under s 192A of the Evidence Act, as establishing a “good reason” to do so. However, it also seems to me that in parenting proceedings under Part VII the obligatory application of the principles, and the recognition that the best interests of the children are the paramount consideration, rather than the rights of the parties, set apart the discretions and powers to rule on evidence in advance in Division 12A in a distinctive category.
The question then arises as to whether an advance ruling should be made, as sought by the father. The mother argued that no ruling should be made at this stage about the recordings. Rather, the question of their admissibility or exclusion should await the final hearing. The mother therefore argued that the expert should be allowed to complete her report having regard to the recordings.
The mother’s argument to defer ruling relied in large measure upon authority which cautions against the pre-emptive or summary rejection of evidence on the ground of relevance. All evidence, to be admissible, must be relevant: s 55(1) of the Evidence Act. If evidence is not relevant, it is inadmissible: s 56 of the Evidence Act. Section 55(1) provides “evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
In IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 (“IMM”) at [40] the High Court made clear that by a combination of ss 55 and 56 “Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law”. The Full Court in Britt & Britt [2017] FamCAFC 27; (2017) FLC 93-764; (2017) 56 Fam LR 526 (“Britt”) said at [31] “Thus, evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value”.
In Britt the Full Court continued at [34] and [35]:
In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter. This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.
Evidence is capable of being relevant to an issue if it puts other evidence into context, such as explaining the nature of the relationship in which other events occurred.
For these reasons in Britt the Full Court at [43] and [44] also explained that ruling on the relevance of evidence early in a trial is problematic because the evidence is not yet complete, and a determination, at the threshold of a hearing, that evidence is irrelevant because the fact or proposition contended for cannot be established, must be undertaken cautiously and carefully, because this is, in effect, a summary determination of that issue. I accept that these statements from appellate authority weigh against embarking on determination of relevance in advance of the final hearing.
The mother, and the Independent Children’s Lawyer, relied upon this line of reasoning and referred to my decision in Cadenet & Behrendt (No. 3) [2019] FamCA 827 (“Cadenet”) in which I followed the Full Court’s discussion about early ruling on relevance in Britt. I decided I was unable to do so in the circumstances of that case. The Full Court in Mitford & Mitfordand Ors [2018] FamCA 1067 at [43] commented on how evolution of the issues in a case bears upon an assessment of the relevance of documentary evidence as follows:
At an early stage in the proceedings it is not necessarily easy to define the issues and therefore the extent to which a document or a category of documents may have a sensible relevance. As the proceedings progress, the issues are cast more clearly and accordingly the parties are better able to ascertain what documents are truly relevant and germane to the task that the Court is required to undertake.
Unlike the position in Cadenet, as already pointed out, here the proceedings are close to final hearing and I have the benefit of the Trial Affidavits of both parties. Although the parties may file updating Affidavits in accordance with orders made on 5 November 2019, I am in a better position to make an assessment of evidentiary relevance, and probative value, by reference to the Trial Affidavits already filed. In one sense, those Affidavits can play a role in defining issues analogous to pleadings in other jurisdictions. They go further as well in that they provide sworn evidence, and enable me to form a cautious and careful view about both the issues and whether any particular evidence has no probative value so as to be irrelevant by reference to those issues.
In support of an advance ruling, the father relied upon the decision of Watts J in Hazan & Elias (2011) 45 Fam LR 475 (“Hazan”). In that case the father made several interim applications for removal of a family consultant, for her two reports to be excluded from evidence in all future interim and final hearings, and for a new report to be ordered. The specific question was whether a recording, and a transcript of it, made secretly by the father during his interview with the family consultant, were admissible, in the hearing of his interim application for removal of the family consultant. Although in Hazan the mother argued ruling on the admissibility of the recording should be determined at the final stage of the hearing, Watts J decided it was appropriate to deal with the father’s application at a preliminary stage, precisely because the father sought exclusion of the existing reports and a new expert: at [18]. It is not entirely clear at what point in the proceedings Watts J entertained the father’s application, but I infer it was before a final hearing had commenced. Otherwise, the reference in the father’s application to exclusion of the family reports from evidence “in any future interim or final hearing” would make no sense.
In a number of respects the circumstances in Hazan were different to the present matter. As already pointed out, here the proceedings have a final hearing date, the parties have filed their Trial Affidavits. More importantly, the expert has not delivered a completed report. As noted above, she has halted the process of completing her report until the Court makes a ruling on the recordings. But, despite those differences, like Hazan, in the present matter the application of the father, if acceded to, would result in not only exclusion of the recordings but also the cessation of the present preparation of expert evidence, even though that process is well advanced. Fresh expert evidence would have to be prepared, requiring the involvement of the children in further interviews.
The recordings, prior to filing and service of her Trial Affidavit, were not disclosed by the mother as required by Rule 13.01 of the Rules. This was undisputed by the mother. The mother’s failure to disclose the recordings is relevant to several questions. But initially this failure bears upon the question of whether there should be an advance ruling. Some more detailed consideration of the Rules is necessary here.
It is important to remember that sub-rule 1.08(1) imposes a responsibility on parties to litigation under the Act to promote and achieve the main purpose of the Rules, including the responsibility to comply with their duty of disclosure and assist the just, timely and cost-effective disposal of cases. It can be seen therefore that the Rules connect proper disclosure with the achievement of the main purpose of the Rules and the just, timely and cost-effective disposal of litigation in the Court. It is worth repeating that the achievement of the main purpose is relevant to the question of whether to make an advance ruling.
Sub-rule 13.01(1) imposes a duty on “each party to a case” to give “full and frank” disclosure of all “information relevant to the case, in a timely manner”. The Dictionary to the Act defines “case” to mean “a proceeding under the Act, the Regulations, these Rules…” The current matter is clearly a “case”. The term “information” is not defined in the Act or the Rules. Its ordinary meaning is very broad. For example, the Macquarie Dictionary defines “information” as “knowledge communicated or received concerning some fact or circumstance”. The existence of the recordings and their content clearly fall within the ordinary meaning of “information”. The general duty of disclosure in sub-rule 13.01(1) not only requires disclosure to be “full” but also “timely”. It thus also connects compliance with the duty of disclosure with timely conduct by litigants in the proceedings.
The duty of disclosure is fundamental in all proceedings under the Act. It is not some hollow guideline to which perfunctory lip service can be paid. Numerous financial cases have made this point. In Waterman & Waterman (2017) FLC 93-762 at [32] – [33] the Full Court emphasised that the duty to disclose is a duty owed “both to the other party and to the court” and endorsed the comment of the Full Court in Morrison & Morrison (1995) FLC 92-573, at 81,670 that “Ordinarily, a failure to comply with that duty will amount to a miscarriage of justice”. I see no relevant distinction between financial and parenting cases in this regard.
Rule 13.07 more particularly applies the duty of disclosure to “each document” which is, or has been, in the “possession, or under the control” of a disclosing party that is “relevant to an issue” in the case. “Document” is not defined in the Act or the Dictionary to the Rules. But in the Dictionary to the Evidence Act, “document” is defined to include “anything from which sounds, images or writings can be reproduced with or without the aid of anything else”. The recordings, and the electronic storage devices upon which they are stored, clearly fall within this definition. There is no reason to think that “document” means something different in the Rules. As the Full Court said in Masoud & Masoud (2016) FLC 93-689; [2016] FamCAFC 24 at [20], the meaning of “possession and control” has been considered extensively. For a document to be within the power of a party, the party must be in actual possession of it or must have an immediate indefeasible right at the time of discovery to demand possession from the person who has physical possession of it. The recordings have at all material times been in the possession of the mother and under her control.
Rule 13.14 sets out certain consequences of a failure to disclose documents. Rule 13.14 falls in Division 13.2.1 of Part 13.2 of the Rules. Division 13.2.1 applies to the disclosure of documents in all cases, parenting and financial. Rule 13.14 is in the following terms:
If a party does not disclose a document as required under these Rules:
(a) the party:
(i) must not offer the document, or present evidence of its contents, at a hearing or trial without the other party's consent or the court's permission;
(ii) may be guilty of contempt for not disclosing the document; and
(iii) may be ordered to pay costs; and
(b) the court may stay or dismiss all or part of the party's case.
The terms of sub-rule 13.14(a)(i) are mandatory. They impose a prohibition on offering an undisclosed document as evidence in a hearing without the other parties’ consent or permission of the Court. In the absence of agreement from the father, the mother will require this permission from the Court before she can offer as evidence the recordings at any hearing including the final hearing.
Of course, the mother “offers” a sample of the recordings for the purposes of this hearing of the father’s application. I give permission for that limited offering. The father, as noted, also tendered a sample. However, the substantive point is that the mother offered the recordings to the expert before any permission to offer the recordings as evidence was received from the Court in relation to the final hearing. If the recordings remain part of the evidence upon which the expert bases her opinion, the effect will be that by simply exhibiting the, hitherto undisclosed, recordings to her Trial Affidavit, the mother may, by breaching the rules of disclosure, risk influencing the formation of the expert’s opinion but also effectively pre-empted the exercise of a discretion which reposes in the Court, not a party, namely, whether the permission to offer the recordings as evidence should be granted.
I have given consideration to the application of sub-rule 15.54(2) which requires all instructions to an expert witness to be in writing and to include, inter alia, “full and frank disclosure of information and documents” that will help the expert witness “to perform the expert witness’s function”. I do not think this Rule legitimates the mother’s approach to disclosure in this case. Sub-rule 15.54(3) requires the parties to provide an agreed statement of facts to the expert or in the absence of agreement, separate statements of fact, which can be the subject of directions by the Court: sub-rule 15.54(4). In these proceedings, consent orders were made for the parties to provide the expert with their Trial Affidavits, which in the mother’s case, as already noted above, included the recordings. I do not construe sub-rule 15.54(2)(e) to permit a party to delay full disclosure of relevant information and documents to the point in time when an expert may require them to complete a report. The mother may have complied with sub-rule 15.54(2)(e). She did not comply with her other obligations of disclosure.
In Nepean & Treloar [2010] FamCA 781 (“Nepean”), Fowler J considered the position where a single expert had taken account of material that had been provided to the expert by the mother, in the form of a submission document, without the consent of both parties, in breach of sub-rule 15.54(3) of the Rules. Fowler J concluded at [16]:
...sufficient reasonable reference to the unchallenged assertions made in the submission document in the report to give rise to a reasonable apprehension that the report is the product, at least in part, of a breach of the Rules and the influence of the document referred to.
Although it was still open to his Honour to permit the admission of the report into evidence, he considered at [18] – [19] that it was “not only the doing of justice, but also the perception of it being done appropriately” that was “important for the longevity of result and the welfare of the child” and that, as such, “reports should be made in proceedings where parties can accept that the process is beyond reproach, even if the result is not to their liking.”
It can be seen that in Nepean, a report had been prepared and issued by the expert. That report disclosed that the expert had made reference to objectionable material in the report, showing the breach of the Rules may well have influenced the formation of the expert opinion. This enabled Fowler J to conclude the perception of taint to the process was established, a point I will return to later in these reasons. The decision in Nepean was directed primarily to the rejection of an expert report. As already made clear, here there is no report yet. I am unable to form any present view about the extent to which the submission of the recordings to the expert may have had any impact on the mind of the expert. Indeed the preparation of the report has been deliberately suspended by the expert to receive guidance from the Court about the use of the recordings. This of itself demonstrates the expert is alive to the possibility she may need to ignore the recordings. This is an important difference.
Despite the factual differences between the present case and Nepean, that decision could be understood as some support for the conclusion that the mother’s breach of her obligations of disclosure leaves it open to refuse her leave to “offer” the recordings either as evidence at final hearing or evidence to the expert, and that breach of the Rules of itself provides a sufficient basis to exclude the recordings at this stage. Determination of this question is clearly something which should be undertaken as soon as practicable and this is a further reason to make an advance ruling.
I accept that in many cases the admissibility of evidence is determined on the voir dire just before or after the trial has commenced: e.g. Huffman & Gorman (No. 2) [2014] FamCA 1077 where the Court considered the application of s 138 of the Evidence Act. But I do not accept the mother’s argument that the Court should simply defer ruling upon the recordings until the final hearing. The potential of devoting up to 8 hours of hearing time in court or time in chambers to view the recordings is inimical to efficient management of the trial generally and Court resources. If a ruling is deferred, the expert will complete her report having regard to the recordings. This would mean any consequences of the mother’s failure to disclose, and the question of justice between the parties as a result, would in effect be ignored in the process of preparing the expert’s report. It is not in the interests of either the parties or the children to allow an expert report to be completed in the shadow of a clear controversy about the evidence to which the expert should have regard, especially where one possible outcome of the controversy is said to be the need for a fresh expert report, and the expert herself is looking for guidance from the Court. If an advance ruling is made, any expert will have clear guidance from the Court about the extent they should have regard to the recordings. Subject to determining the father’s application to discharge the expert, the process of preparing expert evidence could also be completed as soon as possible. As in Hazan, the very nature of the father’s challenge to the formation of the expert’s opinion here militates in favour of an advance ruling.
Moreover, having considered the submissions and evidence of the parties, and viewed the sample recordings, I am satisfied I can form more than a summary view about the relevance of the recordings which does not risk perpetrating an injustice on either party. I am satisfied that it is appropriate to rule upon the admission or exclusion of the recordings in advance of the final hearing. The parties need clarity about what material the expert, or any fresh expert appointed by the Court, should have regard to. More importantly, it is in the best interests of the children for the Court to make a ruling so as to make clear whether they and the parties will need to go through a fresh round of interviews with a new expert. The considerations set out in this paragraph are consistent with, or examples of, the factors set out by Hogan J in Bloomfield.
Relevance
Having decided it is appropriate to make an advance ruling, it is appropriate to consider first the admissibility of the recordings. I accept, as the father argued, the mother bears the onus to establish the recordings are relevant. The mother contended at [35] of her written submissions they are relevant because it is “beyond reasonable dispute” that they are capable of affecting the assessment of facts in issue, particularly, the nature of disputes between the parents, whether conduct of the father amounts to family violence, friction at changeovers and the ultimate allocation of parental responsibility.
Both parents spend a significant amount of time in their Trial Affidavits describing a number of indicators that changeovers have been factious at times in the past, and in the mother’s case, that the father has engaged in abusive conduct which allegedly falls within the definition of family violence. The following summary gives a sense of the issues to which the mother says the recordings are relevant and gives some indication of the ambit of the dispute. I make no findings in relation to this evidence for the purposes of this judgment.
Pursuant to interim orders made on 15 March 2016, the children were to spend time with the father during the day, four days a week during school term and school holidays, requiring eight face to face handovers a week. The number of handovers then gradually reduced to four handovers a week pursuant to orders made on 4 August 2017 and further, pursuant to orders made on 15 November 2017 to three days a week.
More recently, pursuant to orders made on 20 June 2019 by consent, changeovers were reduced to two days a week during the school term, according to which one day the father collects the children from school. There are four handovers a week during school holidays.
The mother contends that the father “has historically been verbally abusive and physically violent towards [her] and derogatory of [her] family” and that following separation in October 2015, the father has continued to “behave in a manner which undermines [her] relationship with the children”. This has been manifested during changeover in the presence of the children (Her Trial Affidavit, [13]).
She adverts to changeover being “extremely problematic”, primarily when she collects the children from the father’s residence, but states that problems also occurred when the father was required to drop the children at her residence, “although to a lesser degree” (Her Trial Affidavit, [15]). She alleges that the father presents himself with “superficial subtlety” marred by actions including “silence, smiles and leering looks” and has on “numerous occasions” resorted to name-calling while in the presence of the children, namely Sam and C and provides an array of offensive names at [113] – [114] and [429] of her Trial Affidavit.
She further states that during the time following separation but while she and the father continued to reside at the K property, the father continued to “behave aggressively and abusively towards [her]”, the father frequently held a Dictaphone towards her face without her consent and continued to do so at changeovers after he had left the K Street property in March 2016 (Her Trial Affidavit, [240]). The mother also denotes instances of the father making provocative laden comments, the father dropping the children’s belongings inside his front gate and refusing to allow her to enter to retrieve the belongings (Her Trial Affidavit, [430]). She details occasions where the children have been unsettled and have refused to leave the father’s residence and at times have been in a state of screaming and hitting, with the father not assisting with smooth transition, and the father also refusing to consent to proposed changeover times as needed. She also notes that when the maternal grandfather attended changeover with her, that the father “directed his abuse towards [him]” (Her Trial Affidavit, [352]). She describes changeover being “prolonged”, and following orders made in 2017, “extremely prolonged, distressed and conflict ridden” (Her Trial Affidavit, [348]).
The mother states that in about January 2018 and late April 2018 she began taking a plain-clothed bodyguard with her to changeovers and advises that while the father’s behaviour was more restrained, he “simply directed his aggression towards [her] bodyguard” (Her Trial Affidavit, [354]). The mother also notes an incident which took place on 20 December 2018, where the father began “picking up hailstones from his porch and throwing them at [her] car” when he refused to transfer the children into her care (Her Trial Affidavit, [372]). The mother contends that she has attempted to resolve the conflict at these changeovers, by proposing for the changeovers to take place at neutral public locations, however the father has maintained that the changeovers should occur at his residence or to jointly engage a supervision service (Her Trial Affidavit, [375], [378]).
The mother at [408] – [412] of her Trial Affidavit alleges a range of statistics about changeover, saying:
As at 8 June 2019, there were 81 changeovers on Thursday evenings since the November 2017 Orders were made. The father's sister has not supervised a single changeover on Thursday evening.
On 49 occasions I was able to collect the children.
On 34 occasions, I left the L Street property without the children.
On 32 occasions, the children ended up staying overnight at the L Street property as I was not able to successfully collect them in circumstances where they refused to leave with me and on these occasions, the father normally delivered the children to the K Street property at 7 am the next morning during school holidays, or straight to school during the school term.
On 28 occasions, the father refused to deliver the children to the K Street property.
The father says that his and the mother’s residences are “approximately 350m apart” and concedes that he and the mother have previously experienced some difficulties in relation to changeovers which have not taken place at the children’s schools (His Trial Affidavit, [27, 198]). He states that from early on after orders were made in March 2016, the children showed some reluctance to return to the mother’s residence, which worsened over time, and particularly after the orders of 4 August 2016 were made. He says that the children generally exhibited behaviours of crying and screaming, refusing to enter the mother’s house and made comments seeking to prolong their stay with him (His Trial Affidavit, [203]).
He stresses that changeover became “particularly problematic at times when [the mother] brought other people, along such as her family members, and even private security consultants” which made it “even more difficult to effect changeover” and “getting the children to leave with [the mother] at all” (His Trial Affidavit, [205], [210]). The father contends that on such occasions when the children showed reluctance to leave with the mother he would tell the children, “it’s really important that you go with your mother now” and “I’ll see you again soon” and “Your mum loves you and you’ll have fun with her” (His Trial Affidavit, [207]). He also states that “part of the difficulty has been that [the mother] has not actively participated in the changeover to encourage the children to come with her, and usually has either stood at her front door or gone inside her home, waiting for the children to come to her, usually without speaking to the children” (His Trial Affidavit, [210]).
The father points to a number of changeovers “that were particularly distressing, following which [he] considered that it was not in the children’s best interests to attempt a second changeover at [the mother’s] home due to the distress which it would likely cause (His Trial Affidavit, [209]). However, since the orders made on 20 June 2019, the father states that changeovers have largely taken place without issue and the children appear to now be transitioning between households without difficulty (His Trial Affidavit, [214]).
The summary of the evidence of each parent in the preceding paragraphs reveals the thoroughness with which the parties have addressed problems at changeovers in their Trial Affidavits. It also makes abundantly clear that there is little dispute between the parties that there have been problems in the past at changeovers.
At this point it is necessary to set out brief description of what the respective sample recordings provided by the parties showed. As already pointed out, the entire “corpus” of recordings runs to some 8 hours. The mother provided sample digital movies totalling 90 minutes. Those provided by the father totalled about 66 minutes. I have viewed it all.
An obvious difficulty for the mother is that such parts of the recordings as may be thought relevant are thus embedded in lengthy and tedious episodes of no relevance. No attempt has been made to identify and isolate those brief sections which have some probative value. It was clear to me that the bulk of the footage in the sample recordings were of no probative value. Large sections showed the bright lights of the mother’s car dashboard, accompanied by pop music, or banal conversations between the mother, the maternal grandfather and neighbours in the street. Senior Counsel for the mother frankly conceded in argument that large sections of the 8 hours showed irrelevant images of the mother driving. To my own observation, based on the samples of each party, others irrelevantly show the mother moving around her home, or standing for long periods outside the father’s house. In fact some of the recordings seem to have been made by the maternal grandfather. Several showed steady CCTV images in which literally nothing happened (e.g. ch02_20171022180432 and ch02_20171022180457).
I assume the samples of both parties, when combined, were representative of the entire corpus. No party suggested their selection was somehow exceptional in comparison to the balance of the recordings. If so, I conclude a considerable proportion of the 8 hours likely has no probative value and is irrelevant.
There were however some short incidents or episodes which could be said to portray conduct of the father unfavourably, such as slamming the door of his house, or appearing to act derisively towards the mother in the presence of the children. Others could be seen as portraying the father favourably, such as hugging the children and delivering them to the mother. The recordings also, implicitly, provide some evidence of the conduct of the mother, as portrayed in the recordings, and by the very fact she made them.
Probative Value and Importance
While relevance will dictate admissibility, it is also necessary to consider the probative value and importance of the recordings where the issue of possible exclusion has been raised. In the Dictionary to the Evidence Act, “probative value” is defined to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. This definition obviously overlaps with the definition of relevance. It must be assumed that those parts of the recordings which are relevant are also not devoid of any probative value. But the degree of their probative value is a different question. In IMM at [45] the High Court pointed out the definition of “probative value” and in particular the word “extent” recognise relevant evidence can rationally affect the assessment of the relevant probability to different degrees.
The importance of the recordings in the proceedings must also be considered. While separate concepts, probative value and importance are closely related. The High Court has recently pointed out, in the context of discussing s 138 of the Evidence Act, that evidence may possess high probative value but not be important in the proceeding in a case in which other equally probative evidence is available: Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 375 ALR 80 at [42]. On the other hand, it may be said that limited probative value may also lead to the conclusion that evidence has low importance in the proceedings.
The father contended the recordings have a low probative value and little importance in the proceedings. I agree. As noted, the mother argued the recordings were powerful corroborative evidence of the father’s behaviour at changeovers. But, as described above at [90] to [99], both parties have given extensive evidence in their Trial Affidavits about conduct at changeovers. In oral argument, the mother argued the recordings gave greater “content and context” to the evidence in her Trial Affidavit. My examination of the samples does not support this submission.
Contrary to the mother’s submissions, observation of the sample recordings does not show they are contextualised in any particularly meaningful way. I am not satisfied the obviously irrelevant parts of the recordings can be treated as relevant background factual material which usefully contextualises the small amount that is relevant. On one view, the paragraphs of the mother’s Trial Affidavit to which the recordings are exhibited give some context, but the way the recordings were made renders isolation of the parts relevant to the Trial Affidavit evidence very difficult. It might also be said that conduct, such as it is, in a digital recording speaks for itself. But the father pointed out that the 8 hours of recordings covered about 28 changeovers in the context of about 400 that took place between the parties before June 2019. As the father also submitted, all the recordings were self-selected by the mother and presented an incomplete picture of changeovers over a number of years. The mother’s own evidence, referred to above at [96], reveals that, on any view, a large number of changeovers have taken place. Since the mother knew that she would seek to make use of the recordings in the proceedings, she may have modulated her own behaviour during the incidents recorded. I do not know. Most of the recordings simply record her voice, not her image. But I cannot tell whether she spoke or conducted herself in a particular way knowing she was being recorded, or is representative and without contrivance or affectation. Some recordings, such as those when the maternal grandfather was present, and carried out the recording, may have an element of setup. These factors undermine the capacity of the recordings to rationally affect assessment of the probability of the existence of the fact in issue, such as they are, which they relate to, and thus their probative value.
There are other considerations which bear upon the probative value of the recordings. As Hannam J said in Masri & Masri [2017] FamCA 539 (“Masri”) at [32], “It is not difficult to simply set out a version of the conversation and conduct in question and have the court determine the matter in the usual way”, without resort to recordings. The Independent Children’s Lawyer referred to what I said in Cadenet at [72] citing Britt at [49], that an assessment of the probative value of evidence depends substantially, of not entirely, upon an estimation of its value relative to the other evidence relied upon by the parties. The discussion at [90] to [100] above shows both parties have set out their versions in great detail. It is not clear how far the 8 hours of recordings add anything material to what each party has said in their Trial Affidavits, especially in light of the large proportion of irrelevant sections in the recordings. If the recordings are rejected the mother will still be able to rely on the balance of her Trial Affidavit.
In Thompson & Platt [2016] FamCA 1116 (“Thompson”), Tree J reviewed at some length the authorities concerning the operation of the bias principles on the evidence of family consultants. Consistently with the comments from Cross on Evidence, cited above at [143], he noted particularly the distinction between a judge as a decision-maker and a family report writer tasked with the role of assisting the Court come to a decision. At [22] Tree J said:
There is no clear reason why those principles, which require natural justice to be afforded by decision-makers, should apply in totality, or perhaps even at all, in relation to the writer of a Family Report. Such persons undertake no decision making; the decision making still resides with the court.
Tree J noted in Thompson that any suggestion to the contrary seems to have its genesis in statements of Pagone J in Fagenblat. In Fagenblat, Pagone J at [7] expressed views consistent with Pownall, namely the “exclusion of an expert's evidence should only occur when the Court is satisfied that the evidence to be led by the expert is unsound and cannot provide probative material of value to the Court's task of determining the issues in the proceedings”. He also, as already noted, refused to follow Liverpool Roman Catholic Archdiocese Trustees. In relation to bias, Pagone J went on to point out that bias in a witness generally goes to the weight of the witness’s evidence, not admissibility, and does not generally impugn the independence of the decision-maker.
But at [8] Pagone J in Fagenblat also seemed to identify an exception to this general position. He said that the possibility that a witness of fact or expert opinion may be biased does not infect the impartiality of the Court, except possibly where “the expert is appointed by the Court” or “where the role or function of the expert is more than that of a giver of evidence… In such a case the role or function of the expert may perhaps come to be incorporated into that of the decision maker”. According to Pagone J this could give some scope for the application of the test of reasonable apprehension of bias to exclude the evidence of an expert.
The father relied upon this apparent exception, emphasising in particular the situation where an expert is appointed by this Court pursuant to the Rules. The expert here was appointed pursuant to Rule 15.44, with the agreement of the parties. The Court of its own motion may appoint a single expert pursuant to Rule 15.45. There are difficulties with the father’s argument. One is that, as pointed out in Thompson, it is not clear that the “Fagenblat exception” has been unequivocally embraced as a correct statement of the law. In Bass & Bass [2008] FamCAFC 67; (2008) FLC 93-366 at 82,487-8 (“Bass”) the Full Court cited the relevant passage from Fagenblat and the statements of Pagone J. I agree with Tree J that the Full Court did not necessarily endorse them. In Fagenblat, Pagone J was considering apprehension of bias in an expert through clear association with a party, specifically, valuation evidence produced by the brother-in-law of one of the parties. This situation is a far cry from the position of a single expert in parenting proceedings in this Court.
Beyond that, it is certainly not self-evident exactly how or when an expert appointed by the Court should be subject to the principles of apprehended bias or at what point the role or function of an expert becomes “more than that of a giver of evidence” or comes “to be incorporated into that of the decision maker”. The role and function of single experts in this Court has been explained a number of times: TWN & PAQ (2005) FLC 93-230 at [101]; Weiss & Arnold [2010] FamCA 270 (“Weiss”) [58] to [63]; Danell & Saller (2015) 54 Fam LR 416 (“Danell”) at [26] to [28]. The mere fact that an expert is appointed by the Court does not seem to me of itself to change the role and function of the expert as a witness. The evidence of the expert does not impinge upon the decision-making role of the Court except as part of the evidentiary record, together with all the other admissible evidence in the case. There is no authority of which I am aware which holds the role and function of a single expert, even one who produces a family report, appointed by the Court, becomes more than a giver of evidence or becomes incorporated into the role of the Court as decision-maker. In this Court, judges routinely decline to accept or follow some or all of an expert’s evidence, depending on the circumstances of the case.
I find the reticence expressed in Thompson to apply the principles of apprehended bias to evidence of an expert such as a family consultant persuasive. It seems consistent with general principle. Nonetheless, there is some authority in this Court which hints at a different view. The Full Court said in Bass at [50] “the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings”. This statement seems to entertain the possible application of rules of apprehended bias to the evidence of experts. It also presupposes that there will be expert evidence in the form of a report which can be tested in cross-examination. It also implicitly shows that a single expert is to be treated and tested like other witnesses. Further, as Tree J also pointed out, a number of single instance judgments support the application of the principles of apprehended bias to experts and expert reports, including Kernot at [16] where Watts J was “comfortable in accepting” the proposition that a family consultant can be removed on the same basis as a Judge may be disqualified. It does not appear this proposition was the subject of any argument. In Nepean, Fowler J rejected an expert’s report because of perceived bias in the expert report. It is difficult reconcile all the authorities and the position is not clear. In light of the decisions of the Full Court such as Bass, the first instance decisions in Kernot and Nepean, and the approach of the parties, on balance, I will assume for the purposes of this judgment that in this Court the principles of apprehended bias apply to expert evidence, so as to affect its weight or value, and in the right circumstances even justify its exclusion.
But this conclusion does not settle the outcome the present debate. A further difficulty is that the father seeks to apply the apprehended bias principles to an incomplete process of producing expert evidence, and the expert, not to the ultimate evidence itself. The Court is asked to reject the process before completion, not evidence produced by the process.
Whether or not the exception articulated by Pagone J in Fagenblat is adopted as a correct statement of the law, the decision does not clearly assist the father in achieving his goal. Pagone J applied his views to expert opinion evidence, not the process by which that opinion was formed. Before an expert opinion is formed and a report composed expressing it as evidence, it is very difficult to see how the Court can form any view about its potential to infect the impartiality of the Court with bias. Properly understood, in my view the decision in Fagenblat was directed to the apprehension of bias that the expert evidence ultimately produced, and itself infected by bias, may have upon a judicial mind. It provides no obvious justification for judicial interference with steps taken by an expert for the formation of his or her opinion.
More promising for the father is the decision of Fowler J in Nepean, cited above at [82] – [83]. Fowler J took the view that the process by which expert evidence was produced should be seen as “beyond reproach”, although he expressed that view in the context of rejecting the report of single expert psychiatrist, not interfering with the process leading to the report. When it comes to examining a decision-making process, apprehended bias is underpinned by a central principle that a process should not only be just, but be seen to be just. The perception of justice is informed by procedural fairness. Giving a party an opportunity to be heard is fundamental: Thompson at [22], [26]. In Nepean, a psychiatrist had received a submission document from the mother, in breach of the Rules and not consensually, making a range of allegations against him to which he was not given an opportunity to respond. It was clear the psychiatrist had some regard to the submission document in forming her opinion. This constituted a violation of the dictates of procedural fairness to the father in the process of forming the psychiatrist’s opinion. As I understand the reasoning of Fowler J, this created a reasonable apprehension of bias in the process.
Reasonable minds may differ on how far the requirements of procedural fairness, developed in relation to judicial and other decision-making processes in tribunals, permit judicial interference with a process conducted by an expert for the purpose of producing an expert report as a witness, before any report has issued. In Danell, McClelland J (as he then was) considered the decision in Bass at [33] – [35] and noted that the High Court has held that in applying the test of reasonable apprehension of bias to decision-makers other than judges, the Court must “necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making”: Isbester v Knox City Council (2015) 255 CLR 135 at [22]. Even if the role and function of an expert can to some extent be equated with that of a decision-maker, which is contestable, it is nonetheless clearly separate to and different from the role and function of a court, as many authorities have explained (see [143] above).
Despite the misgivings expressed in the preceding paragraphs, the decisions in Kernot, Nepean and Thompson can be understood as some support the view that the requirements of procedural fairness and the perception of impartiality can, in the right circumstances, apply to the conduct of an expert in preparing their report, permitting judicial interference in that process in an appropriate case.
The argument before me was conducted on that basis of the application of the principles of apprehended bias. I accept that it is generally desirable for a single expert, appointed under Rule 15.44 by the Court, to conduct, and be seen to conduct, his or her process of forming an opinion, generally in compliance with sub-rule 15.59(3), and in an even handed manner, ideally by hearing from all relevant parties, if they co-operate, and receiving their material consensually. In Weiss, Murphy J at [59] suggested single experts should be unaffected by any pre-existing relationship between the expert and the parents or children. Such a relationship, if it existed, would be relevant to the perception of the impartiality of the process conducted by an expert to produce a report.
There is also the fact that sub-rule 15.59(3) of the Rules expressly imposes a range of duties on an expert, including the duty to give “an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness's knowledge and capability” (sub-rule 15.59(3)(a)); a duty to conduct their functions in a timely way (sub-rule 15.59(3)(b)) and a duty to “consider all material facts, including those that may detract from the expert witness's opinion” (sub-rule 15.59(3)(d)). I point out that no express reliance was placed on this Rule. Rule 15.64 spells out consequences if an expert fails to comply with the rules, including sub-rule 15.59(3). Broadly speaking, this sub-rule focuses on consequences for the expert as a witness, including refusing reliance upon the expert’s report. It does not expressly mention discharge for bias.
Although no argument was directed to the possibility, I also observe, in passing and without expressing a concluded view, the wide case management powers, and powers to manage evidence, in Division 12A may provide the basis, in a suitable case, for relief against an expert of the type the father is seeking in his Application. I also observe in passing that an application to discharge an expert on such a basis may require the expert being given the right to be heard.
The terms of Rule 15.59(3), and the decision in Kernot particularly, suggest it is open to the Court to discharge an expert if it is satisfied the expert is conducting their process to form their expert opinion in a manner is breaching, or threatens to breach, these duties, which, as can be seen, expressly refer to bias.
The authorities are tolerably clear that a failure to meet the standards mentioned in [156] above can undermine the value, weight or even admissibility of an expert’s report as evidence. Although there is no comparable clarity, any such failure also likely describes, in my view, the context in which the principles of apprehended bias may, in appropriate circumstances, reasonably invite judicial interference in the process undertaken by a single expert, appointed under the Rules of this Court, to produce expert evidence.
I accept that there is presently no Full Court authority which definitively decides the correctness of any of the views I have expressed. I should add none of those views should be taken as an invitation to make specious, ill-considered or irresponsible applications to interfere with the process undertaken by an expert to form their opinion. For the reasons given, and conformably with the approach of the parties, I will assume without deciding it is open to the Court to apply the apprehended bias rules to the process conducted by an expert report writer.
Another problem, which was not the subject of any argument, but arises and should be mentioned in passing, is the extent to which the dictates of procedural fairness would require the expert themselves to be given an opportunity to be heard in circumstances where it is alleged they conducted themselves in a manner which raises an apprehension of bias such that they should be discharged. To state the problem in these terms provides another cause for doubting the application of bias rules to expert report writers. However, in light of the view I have come to, this question does not need to be addressed in this judgment.
It is necessary then to consider what the relevant facts of the case and other factors can in the present matter taken to make the hypothetical observer “sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear” upon an apprehension of bias in the circumstances here under consideration. It seems to me that the hypothetical properly informed observer would have their attention drawn to and have regard to the following matters.
First, the parties entered into consent orders for the appointment of the expert. Secondly, the expert is bound by the duties and rights set out in Division 15.5.5 of the Rules. The duties set out in sub-rule 15.59(3) have been referred to above at [157]. Thirdly, the expert is bound by clear obligations to form an independent view “within the expert’s knowledge and capability” for the assistance of the Court (sub-rule 15.59(1)). In Nepean Fowler J took the view that a fair-minded lay observer, properly informed, would have their attention drawn to the provisions of the Rules, and the obligations imposed on the expert by the Court. Rule 15.54 obliges the parties to ensure the expert witness has a copy of the most recent version of, and has read, Divisions 15.5.4, 15.5.5 and 15.5.6 of the Rules. Rule 15.63 sets out important mandatory obligations of the expert in preparing their report, including the giving of reasons.
Fourthly, the expert has herself paused the process to await guidance from the Court, even though she has not applied herself, for a procedural order under sub-rule 15.60(1) of the Rules. To put it another way, the expert is awaiting guidance from the Court as to whether she should take any notice of the recordings at all. It should be emphasised here that the parties’ Trial Affidavits were provided to the expert pursuant to a Court order, not as a step she herself required. The fact that the expert has suspended her process, to the extent of postponing final interviews with the parents, and expressly awaits a ruling on the recordings, suggests she is alive to the father’s concerns and understands that the Court can direct her to disregard material already seen. The father did not submit it should be inferred it was beyond the expert’s capacity to do so. Since I have concluded the recordings should be excluded from the mother’s evidence, the corollary is that the expert should ignore them in completing the formation of her opinion and preparing a final report.
Fifthly, no report has yet been issued. In Danell at [32] to [36] McClelland J observed the Full Court in Bass appeared to accept that although the report of a single expert witness could be impugned on the basis of reasonable apprehension of bias, it was difficult to reach such a conclusion in interim proceedings. If it is difficult at an interim stage, it is even more difficult before any report has issued. This is consistent with the observation that, as the discussion above makes clear, the application of the apprehended bias principles has generally been focussed on the weight to be given to expert evidence, rather than its rejection. Almost all the authorities which have considered the relationship between the principles of apprehended bias and expert evidence have done so where a report has been produced, and the argument is whether the evidence should be rejected in whole or in part. Cross-examination often helps to resolve such an argument. It is also significant that once a report has issued, Rule 15.64B enables the parties to agree to convene a conference with the expert for the purpose of clarifying aspects of the expert’s report and, in the absence of agreement, pursuant to sub-rule 15.64B(7), to apply to the Court for an order to that effect. Rule 15.65 enables the parties to seek clarification of an expert witness’ report by asking questions of the expert. It seems to me a properly informed hypothetical observer would have their attention drawn to these matters.
Sixthly, despite the father’s asserted apprehension of bias, there is no contention, nor could there be, that the expert’s report is likely to be based entirely on inadmissible evidence. Putting to one side the recordings, there seems to be no dispute that the bulk of the Trial Affidavit material of both parties, given to the expert, is broadly relevant and admissible. In relation to the recordings specifically, according to my findings, there is no dispute that the expert has been given some relevant material, sunk in a great deal of irrelevant material. A properly informed hypothetical observer would have their attention drawn to this.
Seventhly, in the circumstances of this matter, I am objectively unable, on the evidence, to see that the expert has been deficient in procedural fairness afforded to the father. The expert has spoken to both parties and received evidence from them. The fact that some of the evidence is subject to controversy, because of a forensic decision of the mother, does not make the process either unfair, or appear unfair, in my view, especially where the expert has halted the process to receive guidance from the Court. I also consider that the hypothetical observer would take the same view in reaching a rational and reasonable assessment.
Eighthly, I have found that the evidence said to impugn the process and give rise to an apprehension of bias has a low probative value and importance in the proceedings. I refer to my reasons above at [88] – [104] and the submissions of the father about the relevance, and low probative value and importance of the recordings. Conceptually, of course, it is difficult to sustain the assertion that the recordings are of no or limited relevance, low probative value or unimportant, but nonetheless sufficiently powerful to raise a real risk of improperly infecting the mind of an expert who had seen them. The admission of evidence which turns out to have slight relevance or little probative weight is common in litigation. Its receipt by the Court does not generally raise any apprehension of bias. It is considered and given such weight as it deserves. In other areas of jurisprudence, if a decision-maker takes account of an irrelevant consideration, this may amount to an error of law which may vitiate the decision. It does not often constitute a basis for finding a reasonable apprehension of bias in the decision-maker. It is difficult to see why the submission of evidence of low probative value and importance to an expert, on the other hand, should lead to the conclusion that the formation of her expert opinion will be irreparably corrupted. A hypothetical reasonable observer would take the same view.
I am satisfied the eight considerations set out above would cause the hypothetical observer to be sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear on the question of an apprehension of bias. In light of those factors I conclude that the hypothetical lay observer would be unable to find there is any reasonable apprehension of bias.
In reaching this conclusion I have also taken account of the effect the same facts might objectively and reasonably have upon the parties and the public. Although the father gives evidence that subjectively he fears the process of producing the expert report has been polluted, I do not consider that objectively either the public or either party could reasonably hold that fear.
To express these conclusions in the terms which try to conform to the two steps required by Ebner, the hypothetical fair-minded observer could not conclude the father has either identified that the recordings might lead the expert to form a view other than on a proper basis, or that the recordings may lead to “the feared deviation” from the course of duly forming an opinion.
Quite separately from finding there is no apprehended bias, on case management grounds, I do not consider it proper to cause the preparation of expert evidence to be started again and the time and effort put in by the expert to be wasted. This would not be in the best interests of the children. The expert here is well advanced in the process of preparing her report. More importantly, I am persuaded, as the Independent Children’s Lawyer submitted, it would not be in the best interests of the children to be subjected to a new person as expert and be subjected to a fresh round of interviews. I am satisfied the expert should complete her report. At the final hearing the father will have an opportunity to cross-examine the expert. After the expert report is issued, but prior to the final hearing, the father can submit questions to the expert pursuant to Rule 15.65.
The mother argued that the relief sought by the father, if granted, would put the final hearing dates in jeopardy. At the time the father’s application was heard this seemed possible, but the father put forward evidence that an alternative expert was available and could complete a report in time for the final hearing. It seems to me events have overtaken these arguments. It cannot be ignored that hearing dates may become jeopardised by the current COVID-19 pandemic, irrespective of the impact of the father’s proposed orders. On the other hand, the operational changes made to the Court’s processes may allow the final hearing to proceed if the expert evidence is available. At the date of this judgment no final view can be formed about these questions.
Conclusion
I am satisfied for the reasons given that the recordings should be excluded from the evidence. They should not be taken into consideration by the expert. I am not satisfied a fresh expert should be appointed. I will make orders that the offending paragraphs of the mother’s Trial Affidavit be struck out together with the recordings. I will direct the expert to complete her report and ignore the offending paragraphs and the recordings for the purposes of doing so.
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 15 May 2020.
Associate:
Date: 15 May 2020
7
27
7