A recent decision of the Family Court serves as a reminder of the cornerstone of parenting cases: the best interests of the child. The case also confirms the ongoing duty of disclosure.
The case involved a contentious parenting dispute between a separated couple with three young children. The relationship between the parents was extremely acrimonious, exposing the children to a battlefield of sorts during changeover periods.
Prior to the final hearing, each party submitted their trial affidavits. To the father's surprise, the mother's affidavit had attached hours of digital recordings made of him during changeover. While the mother had those recordings for some time, she had not previously disclosed them to the father. The recordings had already been seen by the child expert before the father had an opportunity to voice his objection.
The Family Law Rules provide that each party has a duty to the Court and to the other party, to give a full and frank disclosure of all information relevant to the case, and sought to be relied upon, in a timely manner. Any failure to comply with this duty may result in the Court excluding the evidence that is not properly disclosed.
In circumstances where the mother had the recordings for some time, she ought to have provided them to the father prior to the filing of her final trial affidavit.
The father filed an urgent application asking the Court to exclude the recordings from the mother's affidavit and sought an order for a new expert to be appointed and a new report.
The Judge excluded the recordings from the mother's evidence. However, the Judge was not satisfied it was appropriate to appoint a new expert and ordered that the present expert complete the report for the final hearing but disregard the recordings.
In addition to the conduct of the mother, the Court had to balance and consider other factors. In broad summary, the Court found that:
- the mother failed in her obligations for disclosure;
- most of the recordings were either irrelevant or had little probative value;
- it was not in the children's best interests to subject them to a new expert and more interviews; and,
- any concern of bias by the expert could be addressed by cross examination at the final hearing.
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