DEACON & DAPHIN

In the Family Court of Australia, Mr Deacon (the applicant father) and Ms Daphin (the respondent mother) were involved in proceedings concerning their children. The Independent Children's Lawyer also participated in the matter. The central dispute revolved around the application of the rules of evidence in the proceedings.

The court was required to determine 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 those provisions. This determination hinged on whether the circumstances of the case were "exceptional" as contemplated by section 69ZT(3) of the *Family Law Act 1975* (Cth).

Justice Macmillan reasoned that to apply the *Evidence Act 1995* (Cth) in circumstances where it would otherwise be excluded by section 69ZT(1), the court must be satisfied that the circumstances are exceptional. This assessment requires consideration of the importance of the evidence, the nature of the proceedings, the probative value of the evidence, and the court's powers regarding adjournment or directions. In this case, the court found the circumstances to be exceptional due to the very limited time the father had spent with the children, the serious allegations of physical and sexual abuse made by both parties against each other and concerning the children, and the significant child protection history and extensive litigation. The court concluded that the evidence underlying expert opinions was crucial and likely to be informed by evidence that might otherwise be inadmissible.

The court ordered that the provisions of the *Evidence Act 1995* (Cth) be applied to the proceedings in accordance with section 69ZT(3) of the *Family Law Act 1975* (Cth).