HUSSON & TUENDER

In *Husson & Tuender* [2013] FamCA 127, the Family Court of Australia considered proceedings between Mr Husson (the applicant father) and Ms Tuender (the respondent mother) concerning their seven-year-old child. The dispute involved allegations of physical and sexual abuse by the father against the child, leading to involvement from Child Protection Services. The father sought orders for equal shared parental responsibility and time with the child, initially at a contact centre, while the mother sought sole parental responsibility and argued against any time with the father due to safety concerns.

The central legal issue before the Court was 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 the application of the Evidence Act in certain family law proceedings. For the Evidence Act to apply, the Court was required to be satisfied that the circumstances were "exceptional," considering factors such as the importance of the evidence, the nature of the proceedings, the probative value of the evidence, and any other relevant matters.

Justice Macmillan reasoned that while the case was listed in the Magellan List, this fact alone was not determinative. However, the significant consequences for the child and parents, particularly regarding the alleged risk of emotional harm and the potential impact on the child's relationship with her father, were crucial. The Court found the evidence, especially concerning allegations of sexual abuse and family violence, to be of critical importance in determining the child's best interests. Given the child's vulnerability and the serious nature of the allegations, including disclosures made by the child to her mother and Child Protection Services, and the father's defence that these allegations were fabricated, the Court concluded that the circumstances were indeed exceptional.

Consequently, 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).