In the 2008 case of Beckett & Horan 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 for a non-relative aged 17 years of age to give evidence. Counsel for the father objected.
Section 100B of the Family Law Act says a child must not swear an affidavit or give oral evidence in proceedings. A child is defined as someone under the age of 18 years.
The Court said that it was clear from s 100B that "a discretion subsists in the Court to allow persons under 18 to give evidence". The Court went on to say that the division of the Family Law Act, the division that deals with the giving of evidence in children's proceedings, gives the court "a wide discretion...to admit evidence that might otherwise not have been earlier admissible."
In this case, the Court found the evidence of the minor to be "highly relevant and cogent" and it was unable to discern whether there is an alternative source, reasonably available, from which such evidence could be given.
The Court did note that the minor was more closely aligned with the mother than the father but said that the question of whether that friendship taints the minor’s evidence "is a matter that is best tested in cross-examination".
It is for the above reasons, and the fact that the minor’s statements had been taken into account by the family report writer in forming his opinion, that the Court gave permission for the mother to call the minor as a witness in the proceedings.
For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law.