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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Nagel & Clay [2020] FamCA 326
Case
[2020] FamCA 326
Decision Date
CaseChat Overview and Summary
In the matter of *Nagel & Clay*, Harper J of the Family Court of Australia considered an application by the father seeking to exclude digital recordings exhibited to the mother's Trial Affidavit and to discharge the single expert appointed in the proceedings. The mother had exhibited approximately eight hours of digital recordings, which portrayed changeovers between the parties, to her Trial Affidavit. This material, along with her affidavit, was provided to the single expert for the preparation of an expert report, simultaneously with its service on the father's solicitors. The father contended that this constituted a non-disclosure under the *Family Law Rules 2004* (Cth) and sought the exclusion of the recordings and the offending paragraphs of the affidavit, as well as the discharge of the expert due to an apprehended bias. The mother sought the dismissal of the father's application.
The court was required to determine whether to make an advance ruling on the admissibility or exclusion of the digital recordings, considering the *Family Law Rules 2004*, Division 12A of Part VII of the *Family Law Act 1975* (Cth), and sections 135 and 138 of the *Evidence Act 1995* (Cth). Additionally, the court had to assess whether there was a reasonable apprehension of bias on the part of the single expert, such that the expert should be discharged. Case management considerations, including the potential disruption to the children and the expert's advanced stage in preparing the report, were also relevant to the court's decision-making process.
Harper J found that while small sections of the recordings were relevant, they possessed low probative value and importance to the proceedings. The mother's breach of the Rules was acknowledged as having disrupted the orderly production of expert evidence. However, exercising discretion under section 69ZX(2)(g) and (h) of the *Family Law Act 1975*, the court determined that the probative value of the recordings substantially outweighed any danger of undue prejudice or waste of time under section 135 of the *Evidence Act 1995*. Regarding the apprehended bias, the court held that a reasonable lay observer would not find any such apprehension, particularly given the disruption to the children and the expert's progress. Consequently, the court ordered that specific paragraphs of the mother's Trial Affidavit and the associated digital recordings be struck out. The single expert was directed to disregard this material and finalise her report without delay, and the father's application was otherwise dismissed.
Orders
Orders of the court
1.
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.
2.
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.
3.
The single expert finalise her report without any further undue delay.
4.
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.
5.
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.
6.
The Application in a Case filed by the father on 13 February 2020 otherwise be dismissed.
7.
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.