“Child-related proceedings” refers to proceedings involving children, that arise as the result of the breakdown of the parties’ domestic relationship and which may be dealt with, either wholly or in part, under Div 12A, Family Law Act 1975 (Cth) (FLA). Disputes that involve children require a different approach to usual litigation and the procedures are set out in ss 69ZM–69ZX, FLA. Disputes relating to alteration of property interests are more like usual litigation processes and are dealt with by the court separately to child-related proceedings.

Allegations of family violence related to the other party in a relationship and/or abuse of children either physical or psychological, are a relatively common feature of matters proceeding to trial. Amendments to the FLA reflect the court and practitioners being directed to focus on the best interests of the child when making any order. The principles under Div 12A, Pt VII of the FLA direct the court to actively manage the proceedings and safeguard the parties against family violence.

Because of the often complex factual situations and sensitivities related to litigation involving children, judicial officers will play a more active role in determining the issues to be covered. The parties themselves will be directed to attend family dispute resolution to avoid protracted litigation and a family consultant may be asked to prepare a report to assist the court, having interviewed the child and the parties. Relevantly a child may not directly give evidence to the court and therefore, hearsay evidence may be admissible when the court determines the form of any order made.

Exceptions related to evidence of children

Division 12A, FLA provides that proceedings under Pt VII of the FLA (child-related proceedings) exclude the application of strict evidentiary rules. The court is required to treat the best interests of the child as the paramount consideration in deciding children’s issues. The Evidence Act 1995 (Cth) (EA) continues to apply to other family law proceedings related to property settlement or spousal maintenance unless the parties consent to the exclusion of the EA.

See Exceptions related to evidence of children.

General powers of the court relating to evidence

The Family Court retains wide powers to give directions or make orders about the manner and content of giving evidence and about the inclusion, content, manner of expert evidence pursuant to ss 69ZN and 69ZX. As the court is not strictly bound by the EA, it retains a discretion as to whether to admit improperly obtained evidence unless the desirability of admitting it outweighs not admitting it, based on such factors as the importance and probative value of the evidence and the nature of the subject matter.

See General powers of the court relating to evidence.

Exclusion of evidentiary requirements

Section 69ZT, FLA excludes the operation of various divisions of the EA in parenting proceedings. The most frequent exceptions relate to hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. In exercising this discretion, the court is required to consider the circumstances contemplated by s 69ZT(3), FLA which include that it is satisfied there are exceptional circumstances and the importance of the evidence, and the nature of the subject matter of the proceedings.

See Exclusion of strict evidentiary requirements.

Standard of proof applied to family law

The standard of proof in civil proceedings is “on the balance of probabilities” (s 140(1), EA) taking into account such factors as the nature and gravity of the subject matter of the proceedings as expressed in Briginshaw v Briginshaw (1938) 60 CLR 336.

Court procedure in child-related matters

Section 69ZN, FLA sets out the principles to be exercised by the court or a registrar of the court when conducting child-related proceedings. Both the court and the parties are to be child focused during the progress of the litigation, considering the needs of the child/children and the impact of the conduct of the proceedings on the child/children. This requires the court to treat the best interests of the child as the paramount consideration in deciding children’s issues.

See Court procedure in child-related matters.

Allegations of family violence and child abuse

“Family violence” has an expanded definition under s 4AB(1), FLA and includes violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.

Examples of family violence can include:

• • assaults;
• • sexual assault;
• • derogatory language;
• • causing damage to property;
• • injury to animals;
• • denying financial support;
• • preventing contact with other family members; or
• • depriving a family member of their personal or financial autonomy.

Exposing a child to any such acts can also be said to constitute family violence: s 4AB(3), FLA.

Where allegations of family violence have been made in the evidence, personal cross-examination between an alleged perpetrator and an alleged victim are now no longer permitted and the cross-examiner is required to obtain legal representation to conduct the cross-examination.

Unacceptable risk of harm test

Where the court is asked to make orders as to whether a child should spend time with a parent when there are allegations of sexual or other serious abuse, it is not necessarily required to make a finding that an offence has occurred. It is sufficient if the court finds that there is an unacceptable risk that the child might be exposed to harm in making its orders. The court is required to achieve a proper balance between the benefit to the child of having access to her parent and the risk of detriment if that access should be allowed.

See Allegations of family violence and child abuse.

General admissibility provisions

In addition to the general application of evidentiary rules, the FLA has specific provisions relating to the admissibility of certain evidence, for example:

• • that any party to a proceeding is a competent and compellable witness;
• • that a family report is admissible;
• • disclosures made to a professional person or a family counsellor; or
• • where a child is referred to a professional person for an examination.

In any case, any disclosure may be admissible where the person reasonably believes that such disclosure is necessary to protect a child from the risk of physical or psychological harm; or prevent or lessen a threat to the life or health of a person or prevent the commission of an offence.

See General admissibility provisions.

Admissibility of hearsay evidence

The FLA makes specific exemptions that excludes strict adherence to evidentiary rules, for example, where a representation made by a child about the welfare of that child or another child may be admissible even where it is hearsay: s 69ZV, FLA. Even where the court permits evidence to be admitted, it must also consider the weight to be given to such evidence.

See Admissibility of hearsay evidence.