Nagel & Clay

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.