Ellis and Cicero

In the Family Court of Australia, Mr Ellis (the applicant father) and Ms Cicero (the respondent mother) were involved in proceedings concerning their child. The dispute centred on the admissibility of evidence from a Ms O, who was under 18 years of age. The father objected to the mother relying on Ms O's evidence, arguing that as a child, she was vulnerable and potentially subject to undue influence.

The court was required to determine whether to grant the mother leave to rely on the evidence of Ms O, a witness under 18, and whether to grant the father leave to file and read an affidavit responding to Ms O's evidence, despite a failure to comply with previous court directions regarding its filing. The court also considered the effect of a prior order by Justice Bell, which had granted Ms O leave to swear an affidavit.

Justice Kent found that Ms O, having been in a past relationship with the father and sharing a child, was likely to provide relevant evidence. The court applied principles relating to the admissibility of evidence from child witnesses, referencing s 100B of the Family Law Act 1975 (Cth) and relevant case law. The court was satisfied that Ms O possessed sufficient maturity to give relevant evidence, a view supported by an assessment from a family report writer. Consequently, the court granted leave for the mother to rely on Ms O's evidence. Regarding the father's response affidavit, while acknowledging the delay and potential prejudice to the mother, the court granted leave for the father to file and read his affidavit, balancing this against the importance of the issues raised by Ms O and the need for a full hearing.

The court ordered that leave be granted for Ms O to give oral evidence and for the father to file and read his affidavit responding to Ms O's evidence.