PART VII DIVISION 12A
JUSTICE LE POER TRENCH
FAMILY COURT OF AUSTRALIA
WHY AM I HERE?
• Because I said the following in a recent judgment.
• Rules of evidence not to apply unless court decides (1) These
provisions of the Evidence Act 1995 do not apply to child-related proceedings:
• (a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about
giving evidence, examination in chief, re-examination and cross-examination), other
than sections 26, 30, 36 and 41;
• Note: Section 26 is about the court's control over questioning of witnesses.
Section 30 is about interpreters. Section 36 relates to examination of a person
without subpoena or other process. Section 41 is about improper questions.
• (b) Parts 2.2 and 2.3 (which deal with documents and other evidence
including demonstrations, experiments and inspections);
• (c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions,
evidence of judgments and convictions, tendency and coincidence, credibility and
• (2) The court may give such weight (if any) as it thinks fit to evidence
admitted as a consequence of a provision of the Evidence Act 1995 not applying
because of subsection (1).
• (3) Despite subsection (1), the court may decide to apply one or more of the
provisions of a Division or Part mentioned in that subsection to an issue in the
• (a) the court is satisfied that the circumstances are exceptional; and
• (b) the court has taken into account (in addition to any other matters
the court thinks relevant):
• (i) the importance of the evidence in the proceedings; and
• (ii) the nature of the subject matter of the proceedings; and
• (iii) the probative value of the evidence; and
• (iv) the powers of the court (if any) to adjourn the hearing, to make
another order or to give a direction in relation to the evidence.
• (4) If the court decides to apply a provision of a Division or Part mentioned in
subsection (1) to an issue in the proceedings, the court may give such weight (if any)
as it thinks fit to evidence admitted as a consequence of the provision applying.
• (5) Subsection (1) does not revive the operation of:
• (a) a rule of common law; or
• (b) a law of a State or a Territory;
• that, but for subsection (1), would have been prevented from operating because of a
provision of a Division or Part mentioned in that subsection.
The Evidence Act.
• The following provisions of the Evidence
Act are non operative under section69ZT
Divisions 3, 4 & 5 of Part 2.1
• Division 3--General rules about giving evidence 26. Court's
control over questioning of witnesses 27. Parties may question
witnesses 28. Order of examination in chief, cross-examination and
re-examination 29. Manner and form of questioning witnesses and
their responses 30. Interpreters 31. Deaf and mute
witnesses 32. Attempts to revive memory in court 33. Evidence
given by police officers 34. Attempts to revive memory out of
court 35. Effect of calling for production of documents 36. Person
may be examined without subpoena or other process
• Division 4--Examination in chief and re-examination 37. Leading
questions 38. Unfavourable witnesses 39. Limits on re-
• Division 5--Cross-examination 40. Witness called in error 41.
Improper questions 42. Leading questions 43. Prior inconsistent
statements of witnesses 44. Previous representations of other
persons 45. Production of documents 46. Leave to recall
Parts 2.2 and 2.3
• PART 2.2----DOCUMENTS 47. Definitions 48.
Proof of contents of documents 49. Documents
in foreign countries 50. Proof of voluminous or
complex documents 51. Original document rule
• PART 2.3----OTHER EVIDENCE 52. Adducing
of other evidence not affected 53. Views 54.
Views to be evidence
Parts 3.2 to 3.8
• PART 3.2----HEARSAY Division 1--The hearsay rule 59. The hearsay
rule--exclusion of hearsay evidence 60. Exception: evidence relevant for a
non-hearsay purpose 61. Exceptions to the hearsay rule dependent on
• Division 2--First-hand hearsay 62. Restriction to "first-hand" hearsay 63.
Exception: civil proceedings if maker not available 64. Exception: civil
proceedings if maker available 65. Exception: criminal proceedings if
maker not available 66. Exception: criminal proceedings if maker
available 66A. Exception: contemporaneous statements about a person's
health etc. 67. Notice to be given 68. Objections to tender of hearsay
evidence in civil proceedings if maker available
• Division 3--Other exceptions to the hearsay rule 69. Exception: business
records 70. Exception: contents of tags, labels and writing 71. Exception:
electronic communications 72. Exception: Aboriginal and Torres Strait
Islander traditional laws and customs 73. Exception: reputation as to
relationships and age 74. Exception: reputation of public or general
rights 75. Exception: interlocutory proceedings
• PART 3.3----OPINION 76. The opinion rule 77. Exception: evidence
relevant otherwise than as opinion evidence 78. Exception: lay
opinions 78A. Exception: Aboriginal and Torres Strait Islander
traditional laws and customs 79. Exception: opinions based on
specialised knowledge 80. Ultimate issue and common knowledge
• PART 3.4----ADMISSIONS 81. Hearsay and opinion rules: exception
for admissions and related representations 82. Exclusion of
evidence of admissions that is not first-hand 83. Exclusion of
evidence of admissions as against third parties 84. Exclusion of
admissions influenced by violence and certain other conduct 85.
Criminal proceedings: reliability of admissions by defendants 86.
Exclusion of records of oral questioning 87. Admissions made with
authority 88. Proof of admissions 89. Evidence of silence 90.
Discretion to exclude admissions
• PART 3.5----EVIDENCE OF JUDGMENTS AND CONVICTIONS 91.
Exclusion of evidence of judgments and convictions 92. Exceptions 93.
• PART 3.6----TENDENCY AND COINCIDENCE 94. Application 95. Use of
evidence for other purposes 96. Failure to act 97. The tendency rule 98.
The coincidence rule 99. Requirements for notices 100. Court may
dispense with notice requirements 101. Further restrictions on tendency
evidence and coincidence evidence adduced by prosecution
• PART 3.7----CREDIBILITY Division 1--Credibility evidence 101A.
Credibility evidence Division 2--Credibility of witnesses 102. The
credibility rule 103. Exception: cross-examination as to credibility 104.
Further protections: cross-examination of accused 106. Exception:
rebutting denials by other evidence 108. Exception: re-establishing
credibility Division 3--Credibility of persons who are not witnesses
108A. Admissibility of evidence of credibility of person who has made a
previous representation 108B. Further protections: previous
representations of an accused who is not a witness Division 4--Persons
with specialised knowledge 108C. Exception: evidence of persons with
• PART 3.8----CHARACTER 109.
Application 110. Evidence about
character of accused persons 111.
Evidence about character of co-
accused 112. Leave required to cross-
examine about character of accused or co-
• Evidence of family
• The court must not, without the consent of
the parties to the proceedings, take into
account an opinion expressed by a family
consultant, unless the consultant gave the
opinion as sworn evidence.
• Evidence of children
• (1) This section applies if the court applies the law against hearsay under
subsection 69ZT(2) to child-related proceedings.
• (2) Evidence of a representation made by a child about a matter
that is relevant to the welfare of the child or another child, which would not
otherwise be admissible as evidence because of the law against hearsay, is
not inadmissible in the proceedings solely because of the law against
• (3) The court may give such weight (if any) as it thinks fit to
evidence admitted under subsection (2).
• (4) This section applies despite any other Act or rule of law.
• (5) In this section:
• "child" means a person under 18.
• "representation" includes an express or implied representation, whether
oral or in writing, and a representation inferred from conduct.
• How did the change to the admission of
evidence in Division 12A evolve.
• (a) Initiatives of the court.
• (b) The “Every Picture tells a story” parliamentary committee report.
• (c) Consultation between AG‟s Department and the Court.
• (d) Pilot program of CCP in both Sydney & Parramatta.
• (e) Other events & circumstances.
• Guiding Principles to adducing Evidence.
• The material is Relevant.
• The material is reliable.
• The material is in a form which can be given weight.
• The evidence, in whatever form it is
presented, must address a fact in issue,
which is itself a relevant fact, or provide
evidence of a fact which the court is
required to consider pursuant to the Act.
• The aim of providing any evidence to a court is to be able to rely on
that evidence in making submissions to the court so that a particular
case may be established.
• The form in which evidence is presented often affects its reliability.
• Reliable evidence is almost never found in the following forms of
a) Hearsay evidence;
c) Submission (sometimes referred to as “argument”).
d) A self serving statement.
e) Annexing a solicitors letter which contains allegations.
f) An affidavit which evidences that a translation is required before the deponent can
swear to the truth of the affidavit, yet no attestation, proving translation, is attached.
• “The husbands‟ mother told me „he always had difficulty controlling his
• “Our youngest sons‟ pre-school teacher, Mrs Smith, told me the father has
„long farewells‟ with our child when he delivers him to pre-school. She said it
made it a very emotional event for James.”
• “When I told our GP Dr Evett what Dion had said the doctor told me it was
clear evidence of sexual abuse.”
• WHAT ABOUT THIS.
• “The policeman told both the father and myself, at the same time, that our
daughter Claire (10) had told him „my father hit me across the face‟”
• “The fathers‟ family was controlling towards me.”
• “The father started to become violent towards me in 2002.”
• “I was forced to take another AVO against him.”
• “James and his family have made repeated attempts to discredit me
as a person and a mother.”
• “I consider the fathers‟ sister to be quite an abusive and controlling
• WHAT ABOUT THIS?
• “I do at times swear at the children. I have had angry outbursts. I
was on some occasions intoxicated.”
• “David is in year 5 and progressing well at school.”
• “There is no truth in any of James or Belinda‟s allegations against
• “The father exhibits an overprotective parenting style.”
• “The father provides a poor role model for all the
• I have always held the children‟s best interests as my
most important goal in parenting them.
• WHAT ABOUT.
• “I may have had some deficiencies as a parent,
however, when Brendan is with me I always ensure he
brushes his teeth each morning, lunch and evening after
Annexing a Solicitors Letter.
• “I caused my solicitor to send a letter about an attack on
22 March 2010. I annex a copy of that letter.” The
annexed letter says, inter alia, “I am instructed your
client attacked my client most viciously on 22 March
2010. Please ensure this never happens again.”
• “On 23 March 2010 I instructed my solicitor to write to
the father‟s solicitor advising that Riley had injured
herself whilst in my care on the weekend. I annex that
letter marked as „B‟”.
• Such correspondence should only be relied upon where
it is necessary to establish the fact, or date, of a
complaint for a relevant purpose.
SELF SERVING STATEMENT
• “I have always been a caring mother.”
• “I am very interested in our child‟s
• “I provide a healthy balanced diet for
• “I hold two university degrees in arts and
science. I am well equipped to assist
James with his school work.”