Evidence of a witness under 18 years of age in a Family Law matter

Date: Feb 02, 2009
Document Type: Newsletter

In the case of Beckett & Horan [2008] FMCAfam 1427 the issue of permitting a witness under 18 years of age to give evidence in family law proceedings was raised. The proceedings in question concerned both parties seeking parenting orders. An application was made by the mother to adduce evidence from Ms. S, a non-relative aged 17 years of age. Counsel for the father objected to the evidence being adduced on the grounds of s 100B of the Family Law Act 1975 (Cth).

Section 100B of the Family Law Act states:

(1) A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings, unless the court makes an order allowing the child to do so.

(2) A child must not be called as a witness in, or be present during, proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, unless the court makes an order allowing the child to be called as a witness or to be present (as the case may be).

(3) In this section:

"child" means a child under 18 years of age.

Federal Magistrate Wilson, in hearing the case, said that it was clear from s 100B that "a discretion subsists in the Court to allow persons under 18 to give evidence". When discussing what factors may be considered relevant in exercising such discretion, Wilson FM stated that some of the factors set out by Lambert J in Foley v Foley (1978) FLC 90-511 still remain relevant.

Wilson FM went on to say that Div 12A of Pt VII of the Family Law Act, the division that governs the giving of evidence in children's proceedings, and in particular ss 69ZN, 69ZQ AND 69ZT, gives the court "a wide discretion...to admit evidence that might otherwise not have been earlier admissible."

In this case, Wilson FM said that he found the evidence of Ms. S to be "highly relevant and cogent" and that he is unable to discern whether there is an alternative source, reasonably available, from which such evidence can be given.

The Federal Magistrate did note that Ms. S was more closely aligned with the mother than the father but said that the question of whether that friendship taints Ms. S's evidence "is a matter that is best tested in cross-examination".

It is for the above reasons, and the fact that Ms. S's statements had been taken into account by the report writer in forming his opinion, that Wilson FM gave leave for the mother to call Ms. S as a witness in the proceedings.

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