Cases published May 2020
Family Court of Australia – Full Court
Carrington & Gunby [2020] FamCAFC 117 (15 May 2020)
Parenting – contravention of parenting orders – whether the father demonstrated that he had a reasonable excuse for retaining the child – whether the father believed on reasonable grounds that the retention of the child was necessary to protect the safety of the child – whether the father’s retention of the child was not longer than necessary to protect the safety of the child – consideration of the evidentiary value of a Notice of Child Abuse, Family Violence, or Risk of Family Violence – where there was no evidence as to a risk of harm to the child that reasonably justified the father’s continued retention of the child – no error by the primary judge – appeal dismissed.
Family Court of Australia
Nagel & Clay [2020] FamCA 326 (15 May 2020)
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.
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 s192A 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 r13.14 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.
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 s69ZX(2)(g) and (h) – where it is inappropriate in the circumstances to make findings for the purposes of s138 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 s135 of the Evidence Act 1995 – orders made for the offending paragraphs of the mother’s trial affidavit be struck out together with the recordings.
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.