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What evidence will the court consider?

At trial, parties do not normally give oral evidence in chief. Rather evidence is presented by way of affidavits which must be sworn, filed and served on the parties in advance of the trial. Directions for the dates for completing this task are usually given at the pre hearing conference and a compliance check ensues.

The affidavit sets out the evidence in chief of each witness proposed to be called by a party. In the case of the applicant or the respondent their affidavit should be comprehensive. The following matters should normally be addressed:

  • the applicant's personality and background.
  • their schooling and occupation.
  • their health including their mental health.
  • their proposals for where the child will live and spend time.
  • the arrangements they propose for the child's care and education.
  • the arrangements they propose in respect of relevant moral issues, religious matters and cultural background issues particularly where the child is of Aboriginal or Torres Strait Islander descent.
  • their evidence in relation to any allegations of family violence.
  • details of any subsequent marriage or de facto relationship in which they have been involved which could be relevant in the proceedings, for example, details of any re-marriage and step children.
  • issues relating to the children's stability and the status quo. If it is to be changed, they may wish to set out why this would be in the child's best interests. However, they should stick to presenting the facts, rather than arguing their case.

As with all affidavits, the deponents should normally stick to factual matters and should not contain speculations or expressions of opinion. They should also be free of hearsay reports, that is, evidence of things which are not within the parent's personal knowledge but have been gleaned from other sources such as second hand reports, the media, text books etc. As a parent is not considered by the court to be an expert in respect of their child, they should also not include any opinion material about the child's mental or physical health etc. It is sometimes difficult to draw the line, for example it is not unusual for affidavits to contain matter which could be considered comment, for example, on the other party's parenting skills, truthfulness etc.

Family assessments/counselling reports

Section 62G(2) of the Family Law Act 1975 (Cth) provides for the court to direct a family consultant (court counsellor) to make a report. In making a report, the consultant will commonly interview each parent and the child individually, unless the child is of an age or maturity where this is inappropriate. Commonly also the consultant will observe interactions between the child and each party. Conversations with a consultant are not confidential. A report is prepared for the court and circulated to the parties. Although the consultant's opinion is not binding on the court and is just another opinion to be considered with the rest of the evidence, as it is an independent assessment of the situation it is generally persuasive.

Because of the high demand for reports, it is not practicable to obtain family assessment reports on an interim basis and they can normally only be ordered at a pre-hearing conference. For this reason, the parties sometimes arrange for a family assessment by a private practitioner in order to have an early report. Where the parties agree, they can do this without there being an independent children's lawyer appointed, but if agreement cannot be reached then an application for an independent children's lawyer to be appointed may result in the representative arranging a family assessment. Parents are normally required to contribute to the cost of the family assessment, and where they are unable to do so and are not legally aided, the report ordered by the court is an alternative.

Psychological reports

Although a party can apply to the Family Court that a child be referred for a report relating to psychiatric or psychological assessment, the unnecessary and unjustified exposure of a child to this kind of assessment is discouraged by the court. Referrals of children to psychiatrists or psychologists are limited to appropriate cases only, and the court can give any direction relating to the assessment that appears necessary having regard to the welfare of the child. Where a direction of the court has not been obtained, the court can refuse to admit the report in evidence unless all parties gave written consent to the referral. Where someone is threatening to obtain a psychological assessment it may be possible to obtain an injunction preventing it.

Expert witnesses

As part of the pre-action procedures, a party may require that information be sought from an expert witness. The rules about instructing and obtaining reports from an expert are in part 15.5 Family Law Rules 2004 (Cth).

In summary:

  • An expert must be instructed in writing and must be fully informed of her or his obligations.
  • Where possible, parties should seek to retain an expert on an issue only where an expert’s evidence is necessary to resolve the dispute.
  • Where practicable, parties should agree to obtain a report from a single expert instructed by both parties.

If separate experts’ reports are obtained, reports must be exchanged.

What evidence will the court consider?  :  Last Revised: Mon Jul 13th 2015
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