The fundamental rule of evidence is that it must be relevant

It is said that all other rules of evidence flow from this fundamental rule. The purpose of the fundamental rule is only to allow 'evidence' which tends to prove or disprove a fact in issue. Anything else is a hindrance, or even detrimental, to the deliberation process, the Court is required to undertake.

One principle which flows from the fundamental rule is that 'evidence' cannot be received which 'swears to the ultimate issue.' There is some doubt about the certainty of this principle as a rule of evidence, however, most recently Callinan J held in Naxakis v. Western General Hospital:

Section 69ZT of the Family Law Act 1975 states, relevantly, that the rules of evidence do not apply to 'child-related proceedings'. The section flows from principles for conducting child-related proceedings listed at section 69ZN of the Act. One of those principles is to ensure proceedings are conducted without undue delay and with as little formality and legal technicality and form as possible.

The correlation is that prima facie the rules of evidence produce formality and legal technicality not conducive to these proceedings. Nevertheless, within section 69ZT, the Court is still empowered to apply the rules of evidence should the circumstances of the case require it - sub-section 69ZT(3) refers.

Whilst that sub-section lists matters the Court should consider in the application of the rules of evidence, it is clear that should a rule of evidence enhance the likelihood of an expeditious resolution, or remove technicality, then such a rule would, in my opinion, satisfy subsection 69ZT(3) and be likely to be applied. Couple that with a judge's inherent unwillingness to abandon all the rules learnt and applied with alacrity over several years, and it is not unreasonable to argue that the rules of evidence still play a part in child-related proceedings.

Rules of evidence not to apply unless a court decides

  • (1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:

(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;

Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to the examination of a person without the subpoena or another process. Section 41 is about improper questions.

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

(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

  • (2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
     
  • (3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

(a) the court is satisfied that the circumstances are exceptional; and

(b) the court has taken into account (in addition to any other matters the court thinks relevant):

(i) the importance of the evidence in the
proceedings

; and

(ii) the nature of the subject matter of the proceedings; and

(iii) the probative value of the evidence; and

(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
 

  • (4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
     
  • (5) Subsection (1) does not revive the operation of:

(a) a rule of common law; or

(b) a law of a State or a Territory;

that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.

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Author

Alan Weiss

25th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.