Family Court Evidence laws

69ZW  Evidence relating to child abuse or family violence

             (1)  The court may make an order in child‑related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.

             (2)  The documents or information specified in the order must be documents recording, or information about, one or more of these:

                     (a)  any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

                     (b)  any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

                     (c)  any reports commissioned by the agency in the course of investigating a notification.

    

 (3)  Nothing in the order is to be taken to require the agency to provide the court with:

                     (a)  documents or information not in the possession or control of the agency; or

                     (b)  documents or information that include the identity of the person who made a notification.

             (4)  A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.

             (5)  The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.

             (6)  Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless:

                     (a)  the person consents to the disclosure; or

                     (b)  the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.

An opportunity for coercion and reprisals against any agency that assists a victim.

             (7)  Before making a disclosure for the reasons in paragraph (6)(b), the court must ensure that the agency that provided the identity or information:

                     (a)  is notified about the intended disclosure; and

                     (b)  is given an opportunity to respond.

69ZT  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 character).

             (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 proceedings, if:

                     (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.