HARRIS & CAVANAGH

In *Harris & Cavanagh*, heard in the Family Court of Australia at Melbourne, Mr Harris (the applicant father) and Ms Cavanagh (the respondent mother) were involved in parenting proceedings concerning their child. The Independent Children’s Lawyer also participated in the proceedings. The core of the dispute revolved around the proposed parenting orders, with the parties holding significantly divergent views on the father's future involvement with the child.

The primary legal issue before the court was whether the rules of evidence, as ordinarily applied in court proceedings, should apply to the parenting case, pursuant to section 69ZT(3) of the *Family Law Act 1975* (Cth). This section allows the court to direct that the rules of evidence apply if it is satisfied that the circumstances are exceptional. The court was also required to consider the admissibility of evidence, particularly in light of serious allegations made against the father, who was on the sex offender's register.

Justice Cronin reasoned that exceptional circumstances existed warranting the application of the rules of evidence. The court highlighted the critical importance of the evidence in determining whether the child was likely to be subjected to physical or psychological harm, a central consideration under section 60B of the Act. The nature of the subject matter, involving serious allegations against the father and the need for evidence to be presented in an admissible form rather than mere belief statements, further supported this conclusion. The court noted that the father's behaviour and its potential ongoing relevance, despite a psychologist's assessment of low risk, also necessitated careful evidentiary scrutiny.

Consequently, the court ordered that all rules of evidence should apply to the proceedings, subject to any contrary ruling at trial. The matter was adjourned for a final hearing, with directions given for the filing and service of affidavits, amended responses, and case outlines. The court also stipulated that affidavits relied upon in previous hearings could not be used as evidence in chief without leave, and any non-compliance with the timetable could lead to the case being removed from the trial list.