Family law proceedings in Australia illustrate the unique nature of family law disputes.
The rules of evidence in family law matters are governed by both a combination of the Family Law Act 1975 (Cth) (‘FLA’) and the Evidence Act 1995 (Cth) (‘Evidence Act’). It also incorporates specific Court rules under the Federal Circuit and Family Court of Australia (‘FCFCOA’). The application of these rules of evidence vary depending on the type of proceedings, particularly when looking at child—related matters.
Evidence in family law matters take form in several ways.
However, family law proceedings raise a particular set of evidentiary concerns, notably in connection with evidence in parenting cases.
However, there are typically two primary forms.
A party to a family law matter “tell their story” by means of a written statement by way of an Affidavit usually prepared by a lawyer. being a sworn written statement prepared by a party or witness. It presents the evidence or the facts of the case to the Federal Circuit and Family Court of Australia through documenting the witness’ firsthand experience. What the witness has seen, heard, and experienced.
Other forms of evidence in family law proceedings may be through documents which corroborate the witness’ affidavit. Evidence is what “wins” cases. A party’s “story” can only go so far. Often, a matter is at an impasse due to “he say, she say” allegations. Whoever can produce a document to corroborate his/her version, will ultimately win that part of the dispute. For instance, this is particularly notable in property related family law matters. As an example, a bank statement can show proof of payment. A loan document, an amount of money provided and so forth.
All parties to a family law matter, especially those which involve in property proceedings, have a duty to disclose all documents and information in their possession that are relevant to the issues in dispute. This is otherwise known as ‘disclosure’. Documents that may be included in disclosure could be evidence through the form of valuations of any property, businesses and superannuation, and may include copies of bank statements, taxation returns etc.
Furthermore, parties are required to declare their financial circumstances through the form of a financial statement. This is an evidentiary document that sets out an individual’s income, financial resources, assets and liabilities, made under oath, or affirmation.
In parenting related matters, documentary evidence may include any criminal records of a party, documents filed in family violence proceedings concerning a party, or any school or medical reports about the child. These documents may also involve the parties themselves.
Admissible Evidence
It is important under the Court Rules that evidence is relevant and follows the rules, also known as being ‘admissible’. This assists the Court in understanding and determining a matter.
Under section 55 of the Evidence Act, the legislation provides the test of evidence in Civil matters. This stipulates that in civil matters such as family law, evidence is only admissible if it can directly or indirectly affect the assessment of whether a fact is true or not, should it be accepted by the Court.
Section 56 of the Evidence Act provides that evidence is admissible unless otherwise set out in the Act. Any evidence that is not relevant to the proceeding is not admissible.
Hearsay Evidence
This is a statement about a discussion of “other people” heard by the witness who is making the affidavit. Normally, if a party wants to provide “evidence” of the discussion overheard, that will be inadmissible, except in parenting cases where the court could allow such evidence.
A significant aspect here is that evidence of a presentation by a child about a matter that is relevant to the welfare of the child is not inadmissible solely because of the law against hearsay.
Paramountcy Principle
A further important aspect is the contention concerning the relationship between the Evidence Act and the Family Law Act, and the extent to which the Family Court is bound by the rules of evidence in parenting matters- and more so, in light of the paramountcy principle. This principle requires the Court to treat the best interests of children as the paramount consideration in deciding parenting cases, but tempered to apply mostly whether or not to make a particular parenting order.
Expert Witnesses
Expert witnesses play a quintessential role in family law matters. There are different types of experts that provide evidence in family law matters before the Court.
Family Consultants assist and advise the Court and parties in relation to parenting matters and their recommendations as to what is in a child’s best interests.
Their role is defined in the Family Law Act.
By conducting an assessment and providing a written document to the Court, Family Consultants are employed to give expert evidence in proceedings. They may also be referred to as Court Child Experts who undertake both the role of a Family Consultant and a Family Counsellor.
However, if undertaking the role of a Family Counsellor, the Court Child Expert is not an expert witness due to confidentiality provisions in the Family Law Act.
Other types of expert witnesses in family law proceedings may include:
- Psychologists / Child and Family Psychiatrists
- Social workers
- Medical Specialists
- Property valuers
- Financial consultants
These experts may assist in providing evidence to a family law proceeding through their role in preparing various reports. This may either be pursuant to an order of the Court, or through agreements from parties to engage an expert to prepare such report without the order of the Court. Normally, these reports are commissioned jointly by the parties, but occasionally, on an adversarial basis by a party.
Treating health practitioner reports may also be submitted as expert evidence due to their role as a professional who is/was providing treatment to one of the parties or children.
Subpoenas
In the event that an individual refuses to give evidence or provide documents to the Court, or is unable to do so, a subpoena may be issued to obtain such evidence. This is a legal document issued by the Court at the request of a party to a matter. It compels a person, or instance such as a bank to produce documents, or even give evidence at a hearing or trial.
There are three types of subpoena:
- A subpoena for production
- A subpoena to give evidence
- A subpoena for production and to give evidence
Unless a court orders otherwise, a subpoena must not be served on a person under 18 years of age.
An individual is required to comply with a subpoena unless the subpoena was not served on the person in the manner as required by the Family Law Rules 2021. Further, the said individual/entity must comply unless the Court has already made an order that the documents or parts of the documents requested would disclose sensitive information that is a protected confidence, or conduct money for the execution of the subpoena was not provided.
Non-compliance with a subpoena may see that the Court issues a warrant for the person’s arrest, and/or orders them to pay any costs caused by the non-compliance. The Court may also find the individual guilty of contempt of the Court.
However, a party to a proceeding may object to the production of documents requested by subpoena.
If a party objects to producing a document, objection can be made for a number of reasons:
- The documents requested are irrelevant to an issue in the matter
- The documents are privileged (such as documents which came into existence as a result of a lawyer/client relationship)
- They disclose sensitive information
The Court will then decide the relevance of the documents.
RAMSDEN FAMILY LAW – HOW WE CAN HELP
From the above, it is very evident that “getting your story told” in family law matters is not an easy task.
If you face such a situation, it will assist you to consult our experienced family law specialists at Ramsden Family Law. We are here to provide you with the necessary legal support and guidance to protect your family’s best interests during this challenging time. Empathy and understanding are crucial to helping clients through these difficult situations. We have assisted many clients to navigate these very difficult and challenging times and are ready to assist you as well.
Our team of dedicated family law specialists brings extensive experience to the table. We understand the nuances of family law cases involving a variety of aspects, from domestic violence to substance abuse and criminal elements. We offer comprehensive legal support tailored to your specific situation. Whether you are dealing with parenting disputes, family violence issues, custody battles, retention and division of assets, we have the expertise to guide you.
We recognise the emotional and personal challenges you may face in these situations. Our approach is rooted in empathy, ensuring you receive the support you need during difficult times. Our primary goal is to safeguard your family’s well-being and best interests.
Every family law case is unique. We provide customised solutions and legal strategies tailored to your specific circumstances. Ramsden Family Law has a strong track record of successfully handling family law cases, irrespective of the circumstances thereof.
We are focused on resolving your matter as quickly and cost effectively as possible, yet will be rigorous in court should your matter ultimately end up there.
If you’re facing family law challenges please do not hesitate to contact Ramsden Family Law.
Getting family law advice if you are thinking about separation is also very important so you are aware of the pitfalls relevant before you make the call on ending your relationship.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
