In the recent case of Nagel & Clay [2020] FamCA 326, involving a parenting and property dispute, listed before the Family Court of Australia for Final Hearing on 27 July 2020, the Husband’s parenting case sought equal shared parental responsibility where the children live with each parent on a week about basis. The Wife sought sole parental responsibly where the children live with her and spend time with the Husband.

The Husband brought an interim application before the Court after the Wife had exhibited an 8-hour transcription of digital and audio recordings of the Husband’s behaviour (at changeover and prior to separation) to her trial affidavit. The husband was unaware that he was being recorded. The Wife provided a copy of her trial affidavit to the family consultant before the Husband had an opportunity to object to such evidence being used by the Wife to support her parenting case.

Unfortunately for the Husband, the family consultant read all of the materials including the transcription of the recordings and proposed to postpone her final interviews until the Court had made a determination as to the admissibility of the recordings.

The Husband made an application to the Court for an advance ruling on the admissibility of that evidence.

Who is a family consultant?

A family consultant is a qualified social worker or psychologist and expert advisor to the Court.

Generally, the consultant will meet with the parents separately and then analyse them spending time with each of the children. After the family consultant has had an opportunity to assess the family, he/she will then provide the parties with a formal expert report detailing his/her recommendations as to which parent the children should live with and how much time the other parent should be permitted to spend with their children or if both parents should have equal care.  The family report is then filed with the Court and provided to the presiding Judge to enable him/her to consider the expert’s recommendations when making a final determination.

Why was the Wife’s exhibited recording so controversial?

There were serious questions before the Judge as to the admissibility of this evidence prior to the trial because the recordings were known to the Wife and not disclosed to the Husband until she had filed her trial affidavit.

The issues in dispute before the Court were as follows:

  1. Whether the Judge has the power to make a ruling prior to the trial;
  2. Whether the probative value of the evidence outweighed any prejudice to the Husband, such that it should be admitted into evidence;
  3. Whether the evidence was relevant to an issue in dispute in the proceedings; and
  4. Whether a new expert should be engaged by the parties because the family consultant opinion was now tainted.

At that stage the parties had incurred the sum of $19,800 for the expert’s involvement in this matter.


Advance ruling

The Judge noted the important principles surrounding the Court’s power to exercise its discretion to provide an advanced ruling in parenting matters. The Judge considered a number of cases and given the seriousness of the evidence being considered, the Judge agreed with the Husband that an advance ruling was required in this instance.


The Judge then went on to decide whether the evidence was admissible.

First, the Judge consider its probative value, that is, whether the evidence was sufficiently important and beneficial to prove either party’s case at the trial. The Judge referred to a decision in of the Full Court in in Britt & Britt [2017] FamCAFC 27; (2017) FLC 93-764; (2017) 56 Fam LR 526 which stated that “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”.

The Husband contended that the recordings had limited probative value and little importance in the proceeding because a majority of the recordings were not relevant at all.

The Wife argued that they corroborated her allegations regarding the Husband’s behaviour.

The Judge agreed with the Husband.

Second, the Judge referred to the Wife’s obvious breach of her disclosure obligations pursuant to Division 13.2.1 of the Family Law Rules 2004 (Cth).

The Judge decided that the Wife’s breach of her disclosure obligation “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.”   The Wife accepted her failure to meet her obligation under the Act to disclosure evidence to the Husband.

The Judge also made references to the evidence being obtained illegally and the relevant provisions under the Evidence Act (Cth) and the Surveillance Devices Act 2007 (NSW) but did not express a final view on the legality of the evidence.

Third, the Judge referred to the relevance of the evidence.

The Wife pointed to her allegations that the Husband was “verbally abusive and physically violent towards [her] and derogatory of [her] family” and continued to “behave in a manner which undermines [her] relationship with the children”. [92] to support her argument to admit that evidence.

The Husband argued that the 8-hour recording was only a small representation of approximately 400 changeovers that took place, was not an accurate snapshot, and that the recordings were hand-picked by the Wife to assist her case.

The Judge acknowledged that some parts may be relevant to the issues presented by the Wife during changeovers, however a large part of the recording was completely irrelevant to either party’s case. Further, the Judge held that the even the parts that may have been relevant had limited probative value.

Ultimately, the Judge ordered that the evidence did not hold enough probative value to outweigh the delay it may cause to the proceeding and the danger that the evidence may unfairly prejudice the Husband’s case and mislead the Court. Therefore, it is not admissible.

The expert witness

The Judge then considered whether the family report writer should be discharged due to a risk of “apprehended bias” as the Husband submitted that the evidence had coloured the expert’s view.

This is an objective test, that is, whether “the level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is that of a lay person (not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear (Johnson & Johnson [2000] HCA 48(2000) 201 CLR 488 at [79]).”

The Judge noted that the consensus in respect of the law surrounding apprehended bias has not been tested in respect of expert witnesses, like it has with the judiciary and other decision-makers because an expert-witnesses simply provides an opinion and does not determine the outcome of the case.  Notwithstanding this, the Judge decided that the parties will keep the same expert, but the expert must disregard recordings when preparing the Final Report for the following reasons:

  1. The expert herself stopped to wait for guidance from the Court before making a determination;
  2. The parties appointed that expert by consent;
  3. The expert has clear guidelines and duties to remain unbiased when forming a view;
  4. The expert had not yet prepared her report and therefore the Judge could not determine whether her opinion had been tainted. The Judge noted that almost all of the evidence which referred to apprehended biased involved a report that had been produced;
  5. There is no evidence that the expert’s report will be based on inadmissible evidence;
  6. The Judge was unable to determine whether the expert did not afford the Husband procedural fairness;
  7. The evidence itself that the Husband was seeking to reject did not hold significant probative value.
  8. The expert is advanced in the process of preparing her report; and
  9. It would not be in the children’s best interests to have them interviewed by a new expert.

This case underlines that in family law proceedings:

  1. Disclose evidence that you are seeking to rely on to the other party to the proceeding;
  2. Make sure that there are no issues of regarding the legality of that evidence; and
  3. Obtain consent from the other party before providing that evidence to the family consultant.

If you have any questions or require advice in respect of your family law matter, please do not hesitate to contact us on 03 8600 9333 or email us at [email protected].