Do you know if, how and when the Evidence Act 1995 (Cth) (“Evidence Act”) provisions apply in Family Law proceedings? Is it important to know the Evidence Act when practicing in family law or doesn’t it apply? What may be some of the consequences for failing to understand or practice with applicable Evidence Act provisions firmly in mind? How can you increase your knowledge and become a more proficient practitioner with respect to evidence? Here are some simple tips to assist you turn your mind to the Evidence Act when practicing in family law.
Section 69ZT Family Law Act 1975 (Cth) (“Family Law Act”) provides that unless the court otherwise decides, specific parts of the Evidence Act are excluded in child related proceedings, such as:
- Divisions 3, 4 & 5 of Part 2.1
- Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
- Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
Knowledge of Parts 3.2 to 3.8 is the most significant for family law practitioners with the most significant exclusion being the ‘hearsay rule’ (that takes you back to the subject of evidence at Uni doesn’t it?):-)
As practitioners, we may be led into a false sense of security by the above mentioned exclusions, particularly in relation to the hearsay rule. We may draft our clients affidavits, without consideration of the excluded provisions, particularly the ‘hearsay rules’, which course can lead to serious and detrimental consequences for our clients. How?
Lets consider s 69ZT (2) Family Law Act where the court has a discretion to apply such weight “as it thinks fit” to the evidence admitted due to the Evidence Act not applying (i.e. hearsay and other excluded provisions). This applies to LAT proceedings in the Family Court as well as proceedings in the Federal Circuit Court (“FCC”).
When drafting affidavits without consideration of the Evidence Act in the FCC, objections will be heard by the Court, to material in affidavits, which is being relied upon, including objections to hearsay and other excluded Evidence Act provisions. This may mean that the clients affidavit evidence, which hasn’t complied with the Evidence Act, may be adversely ruled upon and may then require oral evidence to be adduced to correct the defects in evidence. No such provisions are available, to adduce oral evidence, in LAT proceedings in the Family Court.
What does this mean for your client’s case? The judge may give little or no weight to the evidence contained in your clients affidavit or statements due to the form of that evidence (i.e. its hearsay or opinion evidence etc) which may lead an unexpected unfavourable result….which would have been avoided by proper drafting of the client’s affidavits and statements.
Turning your mind to the Evidence Act provisions, even those that are excluded, particularly when drafting evidence, will assist to satisfy your clients expectations, as they will be less than impressed if their unfavourable result was due, in part, to poor drafting of evidence.
It is important to understand and implement the rules of evidence in your clients material, so that the client’s evidence is at “its highest” to ensure the client has the best opportunity to achieve a favourable outcome. I suggest that compliance with Evidence Act provisions is a course of proficiency in either parenting or property matters.
Do you know the rules of evidence in respect to admissibility of statements or admissions made in counselling, conciliation or mediation conferences in Family Law proceedings?
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