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Evidence Act 1995 applied in exceptional circumstances of alleged sexual abuse of child

Children – Evidence Act 1995 (Cth) to apply in the “exceptional circumstances”
of alleged sexual abuse of a child under s 69ZT(3)

In Garman & Jackson [2013] FamCA 54 (21 February 2013) the father sought an order that the evidence at trial be governed by the rules as to hearsay evidence and generally of the Evidence Act instead of the less strict provisions of Division 12A of Part VII of the Family Law Act as to evidence in child-related proceedings. Macmillan J said at para 5:

“It was submitted on behalf of the father that the evidence at the trial should be governed by the provisions of the Evidence Act 1995 (Cth) otherwise excluded by s 69ZT(1) of the Family Law Act 1975 (Cth). In order to apply all or any of the provisions of the Evidence Act which, by virtue of s 69ZT(1) do not apply, the Court must be satisfied that the circumstances are ‘exceptional’ and in determining whether the circumstances are ‘exceptional’ must take into account the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence, the powers of the Court (if any) to adjourn the hearing, to make another order, to give a direction in relation to the evidence and any other matters the Court
considers relevant (s 69ZT(3) Family Law Act 1975 (Cth)).”

Macmillan J concluded at paras 8-9:

“Notwithstanding that the mother ultimately consented to the re-introduction of the father’s time with the child subject to the recommendations of the family therapist, it is the mother’s case that the child should not spend any time with the father because she is at risk of being sexually abused. Whether the Court ultimately makes a finding that sexual abuse has occurred or that there is an unacceptable risk of abuse those findings should not be lightly made. The evidence in relation to the allegations of sexual abuse, particularly in circumstances where that abuse has been substantiated by DHS but the other experts have taken a different view, is therefore likely to be of particular significance in these proceedings.

If the mother’s case were to succeed based upon a finding either that the father has sexually abused the child or that there is an unacceptable risk of abuse to the child, the outcome of the case would necessarily have a significant impact upon the father and more importantly upon the child in circumstances where the orders might preclude her having any relationship with her father. In those circumstances, given the importance of that evidence and the significance of the possible outcome as a result of the findings based upon that evidence, I am of the view that in this case there are exceptional circumstances and that the rules of evidence should apply. I propose to order accordingly.”

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