Family law proceedings

20.53 Family law proceedings raise a particular set of evidentiary concerns, notably in connection with evidence in children’s cases. Evidence in family law proceedings before the Family Court of Australia is governed by both the Evidence Act 1995 (Cth) and the Family Law Act 1975 (Cth).

20.54 The Family Law Act contains a number of important evidentiary provisions. Most significantly, s 100A provides that evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child is not inadmissible solely because of the law against hearsay. The Family Law Act also contains evidentiary provisions dealing with, among other things:

  • the admissibility of admissions made at a meeting or conference conducted by a family and child counsellor or court mediator;[63]

  • the admissibility of admissions made by a person attending a post-separation parenting program;[64]

  • the court’s power requiring any person to give evidence material to the parentage of a child;[65]

  • the competence and compellability of husbands and wives in proceedings under the Act; [66]

  • children swearing affidavits, being called as witnesses or being present in court;[67]

  • protecting witnesses from offensive or oppressive questioning;[68]

  • means of proving birth, parentage, death or marriage;[69] and

  • restrictions on the examination of children.[70]

20.55 As discussed above, s 8 of the Evidence Act 1995 (Cth) ensures that these provisions are unaffected by the Act. In addition, s 111D of the Family Law Act states that regulations may provide for rules of evidence with effect, despite any inconsistency with the Evidence Act 1995 (Cth), in proceedings dealing with property, spousal maintenance and maintenance agreements.

Evidence and the paramountcy principle

20.56 One issue of contention concerning the relationship between the Evidence Act 1995 (Cth) and the Family Law Act has been the extent to which the Family Court is bound by the rules of evidence in children’s matters—especially in light of the ‘paramountcy principle’. The paramountcy principle requires that the court treat the best interests of the child as the paramount consideration in deciding children’s issues.[71]

20.57 A number of decisions prior to 1995 held that rules of evidence may be put aside if the welfare of the child was likely to be advanced by the admission of the evidence.[72] Some decisions limited this principle, noting that statutory provisions relating to evidence could not be overridden by concerns for the welfare of the child.[73]

20.58 Since these decisions, the enactment of comprehensive rules of evidence in the Evidence Act 1995 (Cth) and amendments to the paramountcy provisions made by the Family Law Reform Act 1995 (Cth) have changed the law and, arguably, left little room for the paramountcy principle to operate.[74] In particular, the Family Law Reform Act 1995 has been said to have restricted the scope of the paramountcy principle. Rather than applying in general to children’s matters, it now applies only to the decision about whether or not to make a particular parenting order.[75]

20.59 The High Court, in Northern Territory v GPAO, interpreted this restriction to mean that the paramountcy principle has no overriding effect on the rules of procedure and evidence, as these are not part of the ‘ultimate issue’ of deciding whether to make a particular parenting order.[76] McHugh and Callinan JJ stated that the paramountcy principle is to be applied when the evidence is complete and is ‘not an injunction to disregard the rules concerning the production or admissibility of evidence’.[77] Kirby J, in dissent, queried how confining the operation of the principle to the ‘ultimate issue’ could accord with the need for a court to have all necessary and relevant evidence before it in order to make a decision based on the best interests of the child.[78]

20.60 In CDJ v VAJ,[79] the High Court again considered the application of the paramountcy principle—this time to the admission of further evidence on appeal before the Full Court of the Family Court. The judgments of the High Court in CDJ v VAJ are said to support the view that, even if the paramountcy principle does not apply expressly in statute, the child’s best interests will remain a significant or ‘powerful’ consideration in judicial decisions.[80]

20.61 In December 2004, the Family Law Council released a discussion paper on the paramountcy principle. The Family Law Council discussion paper asks whether, taking account of the observations of the High Court in CDJ v VAJ and the differences of view in Northern Territory v GPAO, there are any decisions where the paramountcy principle: (a) does not currently apply but should be made to apply; or (b) currently does apply but should be made not to apply.[81]

20.62 The Family Law Council discussion paper also asks: (a) whether the law should be amended to allow the paramountcy principle to qualify the application of the Evidence Act 1995 (Cth) in any circumstances; and (b) whether there are specific applications of the paramountcy principle where it would be appropriate to list other factors which should be considered while treating the best interests of the child as paramount.[82] At the time of writing, the Family Law Council was considering the submissions which would form the basis of their advice to the Attorney-General.[83]

20.63 The Family Law Act also contains a number of other provisions that can override the provisions of the Evidence Act (Cth).[84] These include:

  • hearsay statements of a child about a welfare related matter;[85]

  • the admissibility of admissions made at a meeting or conference conducted by a family and child counsellor or court mediator;[86]

  • the court’s power to require a person to give evidence about parentage;[87]

  • the competence and compellability of spouses;[88]

  • children swearing affidavits, testifying or being present in court;[89]

  • protecting witnesses from offensive or oppressive questioning;[90]

  • proving birth, parentage, death or marriage;[91] and

  • restrictions on the physical and mental examination of children.[92]

The Children’s Cases Program

20.64 In March 2004, the Family Court commenced a pilot for a new Children’s Cases Program (CCP), involving cases in the Sydney and Parramatta registries. The object of the Program is to promote a movement towards a more permissive application of the rules of evidence.

20.65 Practice Directions state that all evidence is to be conditionally admitted and that the judge will determine the weight to be given to the evidence.[93] However, parties to cases in the CCP do not waive their right to appeal an order on the ground of inappropriate weight having been given to evidence.[94] No objections are to be taken to the evidence of a party or a witness, or the admission of documents, photographs, videos, tape recordings and so on, other than on the grounds of privilege, illegality or other such serious matters.[95]

20.66 The Family Court’s brochure on the CCP explains that, for example, the judge can take ‘hearsay’ evidence into account in coming to a decision but that, if the hearsay relates to an important matter, the judge will usually require direct evidence.[96]

20.67 In March 2005, Paul Boers wrote that the private profession’s response to the CCP has been ‘mixed’ and that waiver of the rules of evidence is the main source of concern.

There is a view that the Court’s task is now more difficult. Instead of relying upon lawyers to draft affidavit material which complies with the rules of evidence, and then deal with objections, the judge now has to consider everything that is admitted and then decide whether: it is relevant; it is otherwise admissible under the remaining rules of evidence; it is reliable; and what weight should it be given?[97]

20.68 Under the proposed Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth),[98] a number of sections of the Evidence Act 1995 (Cth) will not apply to ‘child related’ proceedings or (with the agreement of the parties) property and other matters. These reforms are aimed at providing a more conciliatory and less adversarial approach to the resolution of family disputes. The sections that will not apply include:

  • Divisions 3, 4 and 5 of Part 2.1 (general rules about giving evidence, examination-in-chief, re-examination and cross-examination), other than ss 26, 30, 36 and 41 (questioning of witnesses, interpreters, examination of a person without a subpoena or other process, and improper questions);

  • Parts 2.2 and 2.3 (which deal with documents and other evidence, including demonstrations, experiments and inspections);

  • Parts 3.2 to 3.8 (hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).[99]

20.69 However, the court will be able to apply one of more of these provisions if:

  • the court considers it necessary in the best interests of a child or children concerned to do so where there is an issue relating to children’s proceedings;[100]

  • the court considers it necessary or expedient in all the circumstances to do so.[101]

20.70 The Standing Committee on Legal and Constitutional Affairs has noted concerns regarding the potential impact of no longer having the certainty of the rules of evidence in determining the admissibility and weight to be given to certain types of evidence. However, the Committee was overall supportive of the changes proposed by the Bill.[102]

Submissions and consultations

20.71 The Family Law Council supports the Commissions’ view that the evidentiary provisions to support less adversarial procedures in parenting cases are best placed in the Family Law Act. The Council noted that this has been the approach of the Australian Government to the proposed changes to the Family Law Act.[103]

20.72 The Family Court also agrees that the Family Law Act should remain the primary location for evidentiary provisions applicable to family law proceedings.

This is consistent with the policy position of the government and accords with the practical reality that the Family Law Act is where family law practitioners and the increasing number of unrepresented parties are likely to turn first to find relevant rules and procedures. It also reflects the specialist nature of the Court’s work and the need for a level of flexibility and a degree of control over the application of the rules of procedure and evidence in the search for the ‘best interests’ solution.[104]

20.73 However, the Court noted that there are family law matters where, notwithstanding the proposal no longer to apply the rules of evidence, a strict application of the provisions of the Evidence Act 1995 (Cth) will still be appropriate, such as cases involving allegations of child sexual assault or domestic violence.[105]

The Commissions’ view

20.74 The Commissions agree that the Family Law Act should remain the primary location for evidentiary provisions applicable to family law proceedings. This is bolstered by the Commissions’ policy position that the uniform Evidence Acts should remain Acts of general application. The increasing trend towards less adversarial dispute resolution in family law matters means that there will be ongoing reform of family law processes and evidentiary issues. These policy decisions should be made outside of the rubric of the uniform Evidence Acts.

[63]Family Law Act 1975 (Cth) s 19N.

[64] Ibid s 70NI.

[65] Ibid s 69V.

[66] Ibid s 100.

[67] Ibid s 100B.

[68] Ibid s 101.

[69] Ibid s 102.

[70] Ibid s 102A.

[71] See G Watts, ‘Is the Family Court Bound by the Rules of Evidence in Children Matters?’ (1999) 13(4) Australian Family Lawyer 8.

[72] See, eg, Hutchings v Clarke (1993) 16 Fam LR 452.

[73] See, eg, Wakely v Hanns (1993) 17 Fam LR 215.

[74] R Chisholm, ‘“The Paramount Consideration”: Children’s Interests in Family Law’ (2002) 16 Australian Journal of Family Law 87, 96.

[75] Ibid, 109–110.

[76]Northern Territory v GPAO (1999) 196 CLR 553.

[77] Ibid, 629.

[78] Ibid, 638–639.

[79]CDJ v VAJ (No 1) (1998) 197 CLR 172.

[80] Family Law Council, The ‘Child Paramountcy Principle’ in the Family Law Act (2004), 18.

[81] Ibid, 31, Q 1.

[82] Ibid, 31, Qs 1, 2.

[83] Family Law Council, Submission E 77, 13 September 2005.

[84] By virtue of s 8 of the uniform Evidence Acts. See Ch 2.

[85]Family Law Act 1975 (Cth) s 100A.

[86] Ibid s 19N.

[87] Ibid s 69V.

[88] Ibid s 100.

[89] Ibid s 100B.

[90] Ibid s 101.

[91] Ibid s 102.

[92] Ibid s 102A. See Family Court of Australia, Submission E 80, 16 September 2005.

[93]Practice Direction No 2 of 2004: The Children’s Cases Program (Cth), [5.7].

[94] Ibid, [5.8].

[95] Ibid, [5.9].

[96] Family Court of Australia, The Children’s Cases Program: A New Way of Working with Parents and Others in Children’s Cases (2004), 5.

[97] P Boers, The Less Adversarial Approach to Determining Children’s Cases (2005) FindLaw Australia <http://www.findlaw.com.au/articles> at 19 April 2005.

[98] At the time of writing, the Standing Committee on Legal and Constitutional Affairs had considered an exposure draft of the Bill. The Committee tabled its report entitled Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 on Thursday 18 August 2005.

[99] Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) s 60KG.

[100] Under Pt VII of the Family Law Act 1975 (Cth).

[101] Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) s 60KG(2).

[102] Standing Committee on Legal and Constitutional Affairs Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (2005), [4.63]­–[4.64].

[103] Family Law Council, Submission E 77, 13 September 2005.

[104] Family Court of Australia, Submission E 80, 16 September 2005.

[105] Ibid.