Clayton and Bant

In the child-related proceedings before Forrest J, the father objected to the admissibility of several affidavits filed on behalf of the mother. These included affidavits from Ms PE (a clinical psychologist), Ms LS (a solicitor), Ms MJ (a social worker), and Mr IE (a barrister). The court was required to determine which of these affidavits, or parts thereof, should be admitted into evidence and whether they should be provided to the single expert, Mr BC, for his consideration in preparing his report.

Forrest J considered the broad powers conferred by s 69ZX of the relevant Act, which allows the court to give directions and make orders regarding the presentation and nature of evidence in child-related proceedings, including the use of expert evidence. The court also had regard to the discretion under s 135 of the Evidence Act to exclude evidence where its probative value is substantially outweighed by the danger of unfair prejudice, misleading or confusing the court, or causing undue waste of time.

The court ordered that parts of Ms PE's report annexed to her affidavit be struck out and not admitted into evidence. Furthermore, Ms PE's entire affidavit was not to be provided to the single expert, Mr BC, before he had submitted his report, though it could be provided subsequently if either party wished to cross-examine him on it. The affidavit of Ms LS was also struck out and would not be admitted into evidence or provided to Mr BC. The objection to Ms MJ's affidavit was overruled, and it was permitted to be provided to Mr BC. Finally, Mr IE's affidavit was struck out and would not be admitted into evidence or provided to Mr BC, except that instructions to Mr BC were to include reference to specific findings in a previous judgment and to inform him that the father was not leading evidence contrary to those findings.