Cadenet and Behrendt (No 3)

In the matter of Cadenet and Behrendt (No 3), Harper J of the Family Court of Australia considered allegations made by the mother that the father had accessed pornographic images and digital movies while caring for the child, which the father denied. The dispute also involved the admissibility of this material, with the father alleging the mother had improperly obtained it, and the court's consideration of whether section 138 of the *Evidence Act 1995* (Cth) applied to exclude such evidence.

The court was required to determine the relevance and admissibility of the digital material, particularly in light of the father's claims regarding its improper acquisition. A key legal issue was whether the material, described as containing bondage and sexual violence, constituted "fetishistic pornography of concern" and thus warranted assessment by a single expert. The court also had to consider the broad interpretation of relevance under sections 55 and 56 of the *Evidence Act 1995* (Cth), as clarified by High Court and Full Court authorities, and the caution required when excluding evidence at an early stage of proceedings.

Harper J applied the principles of relevance as defined in the *Evidence Act 1995* (Cth), noting that evidence is admissible if it could rationally affect the assessment of a fact in issue, even if only slightly. The court acknowledged that the probative value of evidence should be considered in context and that evidence may be relevant if it explains the nature of a relationship or puts other evidence into context. Given the early stage of the proceedings and the potential for the material to be considered in conjunction with other evidence, the court adopted a cautious approach, akin to summary dismissal, requiring a high threshold for exclusion.

The court made orders for the parties to provide the Independent Children’s Lawyer with an agreed letter of instruction and a joint schedule of images and videos, along with a USB containing the material. The Independent Children’s Lawyer was directed to provide this to Dr B, who was to report on the necessity of engaging a paraphilia expert before preparing an updated Family Report. The parties were ordered to cooperate with Dr B and any further expert engaged, with costs to be shared equally. The proceedings were listed for mention to discuss progress and proposals for further steps.