AUSTIN & AUSTIN

In *Austin & Austin*, heard in the Family Court of Australia, the applicant father and respondent mother sought orders concerning the sole parental responsibility and living arrangements for their three-year-old daughter, as well as property settlement. The dispute was significantly complicated by allegations of sexual abuse made by the mother against the father, which the father vehemently denied.

The central legal issue before the court was whether the provisions of the *Evidence Act 1995* (Cth) should apply to the proceedings, notwithstanding section 69ZT(1) of the *Family Law Act 1975* (Cth), which generally excludes the application of the *Evidence Act* in family law proceedings unless the circumstances are exceptional. To determine this, the court was required to consider the importance of the evidence, the nature of the proceedings, the probative value of the evidence, the court's powers to manage evidence, and any other relevant matters.

Justice Macmillan reasoned that while the Magellan List, where the case was placed due to allegations of sexual abuse, did not automatically render a case exceptional, the specific circumstances here did. The allegations of sexual abuse were likely to be a significant and pivotal issue at trial, supported by extensive expert evidence that would depend on the reliability of factual evidence. The court found a real risk that unreliable evidence, if admitted without the safeguards of the *Evidence Act*, could lead to unreliable findings. Considering the importance of the evidence and the significant impact of the proceedings on the parties and the child, the court concluded the circumstances were exceptional and ordered that the *Evidence Act 1995* (Cth) should apply. The parties were advised to reassess the admissibility of their filed affidavits in light of this decision.