Why Might a Court Exercise its Discretion to Exclude Evidence in a Parenting Dispute?

In the recent case of Nagel & Clay (2020) FamCA 326, the Family Court had to decide whether to use its discretion to exclude certain digital recordings as evidence in a parenting dispute.

Before the final hearing, both parents submitted their affidavits. The mother attached digital recordings of which the father was unaware. Not having disclosed the existence of the recordings, as required by the Family Law Rules 2004 (Cth), the Court had to decide whether to use its discretion to exclude the evidence contained therein.

The case illustrates that, in parenting cases, the best interests of the child are paramount while, at the same time, reiterating the importance of the ongoing duty of disclosure in family law matters.

The facts of the case

The case of Nagel & Clay involved a parenting dispute between a separating couple and their three young children. The relationship between the parents had deteriorated, exposing the children to considerable acrimony during the changeover period.

Both parents filed affidavits in December 2019. In the mother’s statement, it referred to several documents, including digital recordings, which she said she had made in the belief that they would assist her in obtaining the parenting orders she wanted. The mother had possessed them for some time but had not disclosed their existence to the father in accordance with the Family Law Rules. The independent child expert saw the recordings before the father had an opportunity to object.

The father responded by filing an application asking the Court to exclude the recordings in evidence. He also sought an order to have a new expert appointed and a new report prepared.

What were the key issues in this case?

What is the duty of disclosure?

The disclosure responsibilities of the parties involved in parenting (and financial) cases in the Family Court is a complex area of law. This duty is described as follows:

Duty of disclosure requires all parties to a family law dispute to provide to each other party all information relevant to an issue in the case. This includes information included in a paper document or stored by some other means such as a computer storage device and also includes documents that other parties may not know about.

Rule 13.01 [of the Family Law Rules] requires parties to make full and frank disclosure of all information relevant to a parenting case, at all stages in a case. The relevant information and documents will be case specific.

What constitutes the best interests of the children?

When making a parenting order, the primary consideration of the Court is whether the proposed arrangements are in the best interests of the children. The Court’s most important considerations are:

• protecting the children from harm, including children seeing family violence, being neglected, or physically or psychologically hurt; and
• the benefits of having a meaningful relationship with both of their parents.

Should these considerations conflict, the need to protect the children is given greater weight by the Court.

As well as these primary considerations, there are many additional considerations to be taken into account, such as the views of the children, the relationships with their parents and other important people in their lives.

The Court decides if an independent children’s lawyer will be used to help them conclude what arrangements are in the children’s best interests. The independent lawyer does not represent any person in the case. They may, for example, obtain information from teachers or doctors, talk to the children, arrange family or psychological reports and consider all the other evidence presented to the Court.

Can the Court use its discretion to exclude evidence?

Having considered the admissibility of the recordings, the Court agreed to exclude them from the mother’s evidence.

The Court found that the mother had failed in her duty of disclosure. Moreover, it was considered that most of the recordings were either irrelevant or had little probative value; that is, the evidence was not sufficiently useful to prove something important in a trial.

It was not agreed to appoint a new independent child expert. The Court ordered the existing expert to complete their report for the final hearing but to disregard the evidence in the recordings. It was not thought to be in the best interests of the children to involve a new expert meaning, for example, undertaking new interviews with them.

If there were remaining concerns about the approach of the child expert, these could be addressed by cross-examination at the final hearing.

What does this case mean for evidence in parenting disputes?

This case involved the Court’s discretion to exclude or limit evidence under section 69Z X (2) of the Family Law Act 1975 (Cth).

The Family Law Rules require that both parties have a duty to both the Court and the other party to provide full and frank disclosure of all the information that would be relevant to the case that is sought to be relied on, and that it should be done so in a timely manner. Failure to comply with this duty may result in the Court, excluding the evidence that has not been appropriately disclosed.

In Nagel & Clay, the Court used its discretion to exclude the digital recordings from the trial. It took into account factors that included the best interests of the children and the low importance and probative value of the recordings.

While the parties believed that the recordings would have a significant impact on the outcome of the case, that proved not to be the case.

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