The Family Court jurisdiction in Australia is different to other jurisdictions in some respects and similar in others. For example, the trial process involves a judge, witnesses, allegations of material facts (pleadings), compulsory forms containing formatted evidence to establish facts, for example financial information, and reliance on specialist evidence. These aspects operate by much the same process in civil and criminal matters.
One fundamental difference is that Family Court proceedings are, by statutory provision, private and confidential. You will never get evidence into your Family Court proceedings by hearing the evidence given in another court or by relying on a transcript of evidence from another court.
The rules of evidence have an application in relation to 2 “hemispheres” so to speak. The first, the generic body of law which deals with the law of evidence applies universally in all jurisdictions and all courts in each jurisdiction.
The “hearsay” rule is an example. “Hearsay” evidence, is evidence of a witness in a proceeding that they were told something by somebody else. While that might prove beyond any measure of doubt, that the witness was told this information, the hearsay evidence goes, to no extent, to establish the subject of the conversation on the evidence. As a general rule, hearsay evidence is inadmissible.
Equally, the “best evidence” rule applies generically. A copy will not be accepted into evidence if the original is available for the court. The law of evidence requires that the court have available to it, the best evidence that can be provided to the court.
The Family Court has some special features in relation to evidence. I dealt earlier with confidentiality. Many courts of vary their processes to suit the particular needs of the court. Here, that dealing is limited to Family Court.
A special status in the Family Court proceedings is attributed to conferencing and especially child welfare counselling. A concern has been addressed regarding the relationship between the Evidence Act and the Family Law Act as to the extent Family Court is bound by the rules of evidence in children’s matters, in light of the ‘paramountcy principle’. The paramountcy principle specifies that the court treat the best interests of the child as the paramount consideration in deciding children’s issues.
Several cases in the first 20 years of operation of the Family Law act ruled that rules of evidence are secondary if the welfare of the child was likely to be advanced by the admission of the evidence. Some decisions limited this principle, noting that statutory provisions relating to evidence could not be overridden by concerns for the welfare of the child.
Since 1995, and currently, the interaction between hearsay evidence which is admissible because of the paramountcy principal and a more strict application of the “hearsay” rule of evidence is an ongoing conjecture. Two High Court decisions involving different rulings by High Court judges have expanded on the merits of an application of both principles.
Where the balance will be set in the final determination remains for us to see. The law of evidence continues to develop in the Family Court jurisdiction in Australia. Obviously, the delicacy of the issues and considerations keeps the jurisdiction attentive and alive to the needs of the community.