Division 8.2.2Evidence in proceedings involving children

## Part 8.1—Admissions Note: To reduce cost and delay, parties are encouraged to make admissions in relation to facts and documents. The admission is for the purposes of the proceeding only, in order to narrow the issues in dispute. A party should give the other party written notice of any admissions as early as practicable in the proceeding. For example, if admissions are made before the disclosure process, disclosure may be able to be limited and the costs of the proceeding reduced. #### 8.01 Request to admit (1) A party may, by serving a Notice to Admit on another party, ask the other party to admit, for the purposes of the proceeding only, that a fact is true or that a document is genuine. (2) A Notice to Admit must include a note to the effect that, under subrule 8.02(2), failure to serve a Notice Disputing a Fact or Document will result in the party being taken to have admitted that the fact is true or the document is genuine. (3) If a Notice to Admit relates to a document, the party serving the Notice must attach a copy of the document to the notice, unless: (a) the other party has a copy of the document; or (b) it is not practicable to attach a copy to the Notice. (4) If paragraph (3)(b) applies, the party serving the Notice must: (a) in the Notice: (i) identify the document; and (ii) specify a convenient place and time at which the document may be inspected; and (b) produce the document for inspection at the specified place and time. #### 8.02 Notice disputing fact or document (1) If a party who is served with a Notice to Admit seeks to dispute a fact or document specified in the Notice, the party must serve on the party who served the Notice, within 14 days after it was served, a Notice Disputing the Fact or Document. (2) If a party does not serve a Notice Disputing the Fact or Document in accordance with subrule (1), the party is taken to admit, for the purposes of the proceeding only, that the fact is true or the document is genuine. (3) If: (a) a party serves a Notice Disputing a Fact or Document; and (b) the fact or the genuineness of the document is later proved in the proceeding; the party who served the Notice may be ordered to pay the costs of the proof. #### 8.03 Withdrawing admission (1) A party may withdraw an admission that a fact is true or that a document is genuine only with the court’s permission or the consent of all parties. (2) When allowing a party to withdraw an admission, the court may order the party to pay any other party’s costs thrown away. (3) In subrule (1): > admission includes an admission in a document in the proceeding or an admission that is taken to be made under subrule 8.02(2). ## Part 8.2—Evidence Note: The Evidence Act 1995 applies generally to family law proceedings in the Federal Circuit and Family Court, with some exceptions, for example, in child‑related proceedings, or in property or other non‑child‑related proceedings, by consent or order of the court (see section 102NL of the Family Law Act). ### Division 8.2.1—General rules about evidence #### 8.04 How evidence may be given Evidence in support of an application may be given: (a) by way of affidavit; or (b) orally, with the court’s permission. #### 8.05 Court may call evidence (1) The court may on its own initiative call any person as a witness in proceedings and give directions as to examination and cross‑examination. (2) The court may order a party to pay the expenses of the attendance of the witness. #### 8.06 Order for examination of witness (1) A court may, at any stage in a proceeding: (a) request that a person be examined on oath before a court, or an officer of that court, at any place in Australia; or (b) order a commission to be issued to a person in Australia authorising the person to take the evidence of another person on oath. (2) The court receiving the request, or the person to whom the commission is issued, may make procedural orders about the time, place and manner of the examination or taking of evidence, including that the evidence be recorded in writing or by electronic communication. (3) The court making the request or ordering the commission may receive in evidence the record taken. #### 8.07 Letters of request (1) If, under the Foreign Evidence Act 1994, a court orders a letter to be issued to the judicial authorities of a foreign country requesting that the evidence of a person be taken, the party obtaining the order must file: (a) 2 copies of the appropriate letter of request and any questions to accompany the request; and (b) if English is not an official language of the country to whose judicial authorities the letter of request is to be sent—2 copies of a translation of each document referred to in paragraph (a) in a language appropriate to the place where the evidence is to be taken; and (c) an undertaking: (i) to be responsible for all expenses incurred by the court, or by the person at the request of the court, in respect of the letter of request; and (ii) to pay the amount to the Registry Manager of the filing registry, after being given notice of the amount of the expenses. (2) A translation filed under paragraph (1)(b) must be accompanied by an affidavit of the person making the translation: (a) verifying that it is a correct translation; and (b) setting out the translator’s full name, address and qualifications for making the translation. (3) If, after receiving the documents referred to in subrules (1) and (2) (if applicable), the Judicial Registrar is satisfied that the documents are appropriate, the Registry Manager must send them to the Secretary of the Attorney‑General’s Department for transmission to the judicial authorities of the other country. #### 8.08 Transcript receivable in evidence A transcript of proceedings may be received in evidence as a true record of the proceedings, except to the extent that it is shown not to be a true record. ### Division 8.2.2—Evidence in proceedings involving children #### 8.09 Parenting questionnaire Unless a party to a parenting proceeding is required by these Rules to file an affidavit, the party must file a completed Parenting Questionnaire in the approved form with the party’s Initiating Application (Family Law) or Response to Initiating Application (Family Law). #### 8.10 Restriction on child’s evidence (1) A party applying to adduce the evidence of a child under section 100B of the Family Law Act must file an affidavit that: (a) sets out the facts relied on in support of the application; and (b) includes the name of a support person; and (c) attaches a summary of the evidence to be adduced from the child. (2) If the court makes an order in relation to an application referred to in subrule (1), it may order that: (a) the child’s evidence be given by way of affidavit, video conference, closed circuit television or other electronic communication; and (b) a person named in the order as a support person be present with the child when the child gives evidence. > Note: Subsections 100B(1) and (2) of the Family Law Act provide that a child (other than a child who is, or is seeking to become, a party to a proceeding) must not swear an affidavit and must not be called as a witness or remain in court unless the court otherwise orders. #### 8.11 Reports from family consultant (1) A party to an application for final orders may apply for an order that a report (a family consultant’s report) concerning the best interests of a child be obtained from a family consultant under subsection 55A(2) or section 62G of the Family Law Act. > Note: A family consultant’s report may be a child impact report, a specific issues report or a family report. (2) When deciding whether to order a family consultant’s report, the court may take the following matters into consideration, together with any other relevant matters: (a) whether the proceeding involves: (i) an intractable or complex parenting proceeding; or (ii) if a child is mature enough for the child’s views to be significant in determining the proceeding—a dispute about the child’s views; or (iii) a dispute about the existence or quality of the relationship between a parent, or other significant person, and a child; or (iv) allegations that a child is at risk of abuse; or (v) family violence; (b) whether there is any other relevant independent expert evidence available; (c) the capacity of each party to contribute to the cost of a single expert report instead of a family consultant’s report. (3) An application for a family consultant’s report (whether made orally or in writing), and any order made, must identify the issues to be addressed by the report. (4) When ordering a family consultant’s report, the court may order a party or a child to attend for the purposes of preparing the report. (5) If a family consultant’s report is obtained in accordance with an order made under this rule, the court may do any of the following: (a) by order or otherwise, give a copy of the report to any of the following: (i) a party, a lawyer for a party, or an independent children’s lawyer, in the proceeding; (ii) a children’s court (however described) of a State or Territory; (iii) a prescribed child welfare authority; (iv) an authority established by or under a law of a State or Territory for purposes including the provision of legal assistance; (v) the convenor of any legal dispute resolution conference; (vi) a member of the police force of a State or Territory; (b) receive the report in evidence; (c) permit oral examination of the person making the report; (d) order that the report not be released to a person or that access to the report be restricted. (6) If the court, other than by order, gives a copy of a family consultant’s report to a person or body under subrule (5), the copy must be accompanied by a notice that states the following information: (a) the people to whom a copy of the report may be provided; (b) the status of the report at the time of its preparation; (c) information about the potential consequences for unauthorised publication of information contained in the report. #### 8.12 Report after dispute resolution (1) At the end of court‑ordered dispute resolution, the dispute resolution practitioner who conducted the dispute resolution must prepare a report, in the approved form, as to: (a) whether an agreement was reached on an interim or final basis; and (b) the conduct of the parties, in terms of whether the parties attended the dispute resolution and whether they made a genuine effort to resolve the issues in dispute. (2) If the dispute resolution practitioner is a judicial officer, the judicial officer must place the report on the court file. (3) If the dispute resolution practitioner is not a judicial officer: (a) the practitioner must give the report to the applicant; and (b) the applicant must file and serve the report. (4) This rule does not apply to a dispute resolution event conducted by a Judge. ## Part 8.3—Affidavits #### 8.13 No general right to file affidavits A party may file an affidavit without the leave of the court only if a provision of the Rules or an order of the court allows the affidavit to be filed in that way. #### 8.14 Reliance on affidavits An affidavit filed with an application may be relied on in evidence only for the purpose of the application for which it was filed. #### 8.15 Requirements for affidavits (1) An affidavit must: (a) be divided into consecutively numbered paragraphs, with each paragraph being, as far as possible, confined to a distinct part of the subject matter; and (b) state, at the beginning of the first page: (i) the file number of the proceeding for which the affidavit is sworn (or affirmed); and (ii) the full name of the party on whose behalf the affidavit is filed; and (iii) the full name of the deponent; and (iv) the full residential address of the deponent, unless disclosing this address would compromise the deponent’s safety; and (c) have a statement at the end specifying: (i) the name of the witness before whom the affidavit is sworn (or affirmed) and signed; and (ii) the date when, and the place where, the affidavit is sworn (or affirmed) and signed; and (d) bear the name of the person who prepared the affidavit. > Note 1: An affidavit must also comply with the requirements for documents in rule 2.14. > Note 2: A professional witness may provide a business address in place of a residential address. (2) If, in a parenting proceeding: (a) the deponent of an affidavit is a party; and (b) the affidavit does not disclose the deponent’s address; and (c) the deponent’s address has not already been provided to the court; the deponent’s address must be provided to the court by email and the address must not be disclosed other than in accordance with an order of the court. (3) A document that is to be used in conjunction with an affidavit: (a) must be identified in the affidavit; and (b) must be filed as an annexure or an exhibit to the affidavit; and (c) must be paginated; and (d) must bear a statement signed by the person before whom the affidavit is made identifying it as the particular annexure or exhibit referred to in the affidavit; and (e) must not be accepted as evidence in the proceeding unless and until it is separately tendered in evidence at the hearing of the application and accepted into evidence by the court. (4) A document annexed or exhibited to an affidavit must be served with the affidavit. #### 8.16 Making an affidavit (1) An affidavit must be: (a) confined to facts about the issues in dispute; and (b) confined to admissible evidence; and (c) sworn or affirmed by the deponent, in the presence of a witness; and (d) signed at the bottom of each page by the deponent and the witness; and (e) filed after it is sworn or affirmed. (2) Any insertion in, erasure or other alteration of, an affidavit must be initialled by the deponent and the witness. (3) A reference to a date (other than the name of a month), number or amount of money must be written in figures. #### 8.17 Affidavit of illiterate or vision impaired person etc. (1) If the deponent is unable to read, or is physically incapable of signing it, the person before whom the affidavit is made must certify in or below the jurat that: (a) the affidavit was read to the deponent; and (b) the deponent seemed to understand the affidavit; and (c) in the case of a deponent physically incapable of signing—the deponent indicated that the contents were true. (2) Subrule (1) does not apply if the deponent has read the affidavit using: (a) a computer with a screen reader, text‑to‑speech software or a braille display; or (b) other technology for the vision impaired. (3) If the deponent does not have an adequate command of English: (a) a translation of the affidavit and oath or affirmation must be read or given in writing to the deponent in a language that the deponent understands; and (b) the translator must certify in or below the jurat that the translator has done so. (4) If an affidavit is made by a deponent who is incapable of reading it or incapable of signing it and a certificate under subrule (1) or (3) does not appear on the affidavit, the affidavit must not be used in a proceeding unless the court is satisfied that: (a) the affidavit was read or, if appropriate, a translation of the affidavit was read or given in writing, to the deponent; and (b) the deponent seemed to understand the affidavit; and (c) in the case of a deponent physically incapable of signing—the deponent indicated that the contents were true. #### 8.18 Objectionable material may be struck out (1) Subject to section 102NL of the Family Law Act, the court may order material to be struck out of an affidavit at any stage in a proceeding if the material: (a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or (b) contains opinions of persons not qualified to give them. > Note: Section 102NL of the Family Law Act provides that some provisions of the Evidence Act 1995 do not apply to child related proceedings, or to property or other non‑child‑related proceedings, except in certain circumstances. (2) Unless the court otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit. #### 8.19 Use of affidavit without cross‑examination of maker The court may: (a) dispense with the attendance for cross‑examination of a deponent of an affidavit; or (b) direct that an affidavit be used without the deponent being cross‑examined on the affidavit. #### 8.20 Notice to attend for cross‑examination (1) This rule applies only to a trial. (2) A party seeking to cross‑examine a deponent must, at least 14 days before the earlier of the following: (a) the first day of the trial in which the affidavit is to be relied on in evidence; (b) the first day the affidavit is otherwise to be relied on in evidence; give to the party who filed the affidavit a written notice stating the name of the deponent who is required to attend court for cross‑examination. (3) If a deponent fails to attend court in response to a notice under subrule (2), the court may: (a) refuse to allow the deponent’s affidavit to be relied on; or (b) allow the affidavit to be relied on only on the terms ordered by the court; or (c) order the deponent to attend for cross‑examination. (4) If: (a) a deponent attends court in response to a notice under subrule (2); and (b) the deponent is not cross‑examined, or the cross‑examination is of little or no evidentiary value; the party who required the deponent’s attendance may be ordered to pay the deponent’s costs for attending and any costs incurred by the other party because of the notice. #### 8.21 Deponent’s attendance and expenses The court may make orders for the attendance, and the payment of expenses, of a deponent who attends court for cross‑examination under rule 8.20.