Bartel and Schneider (No. 2)

In the Family Court of Australia, Mr Bartel (Applicant) and Ms Schmucker (Respondent) were engaged in final parenting proceedings concerning allegations of sexual abuse and impropriety by the father. An Independent Children’s Lawyer also participated in the proceedings.

The central legal issue before the Court was whether the provisions of the *Evidence Act 1995* (Cth) should apply to the proceedings, as contemplated by s 69ZT(3) of the *Family Law Act 1975* (Cth). This section requires the Court to be satisfied that the circumstances are exceptional before applying the rules of evidence, taking into account factors such as the importance and nature of the subject matter, the probative value of the evidence, and the Court's powers to manage proceedings.

Justice Cronin reasoned that the case presented exceptional circumstances warranting the application of the *Evidence Act 1995* (Cth). These circumstances included serious allegations of sexual abuse and rape, a teenager's refusal of contact with the father and her own allegations, and further serious allegations from another child. The proposed orders sought by the parties and the Independent Children’s Lawyer would significantly alter the existing shared care arrangements, and the mother sought findings of abuse, requiring the application of the *Briginshaw* standard. The potential reliance on expert evidence and extrinsic materials, raising issues similar to those in *Makita (Australia) Pty Ltd v Sprowles*, further indicated that the case was not a "usual" one. The Court also noted that the rules of evidence provide a valuable framework for assessing admissibility, particularly in cases involving allegations of family violence that may lack independent corroboration.

For these reasons, and with the consent of all parties, the Court ordered that the provisions of the *Evidence Act 1995* (Cth) would apply to the proceedings.