Kelso and Finch and Anor

This matter concerned parenting orders sought by the applicant father, Mr Kelso, against the respondent mother, Ms Finch, regarding their two young children. An intervenor, Ms Kelso (the father's mother), had previously claimed a significant debt from the parties. The proceedings originated in the Federal Magistrates Court and were transferred to the Family Court of Australia due to the anticipated length of the final hearing. The case was heard by Cronin J in Melbourne.

The central legal issue before the court was whether the provisions of the *Evidence Act 1995* (Cth) should apply to the proceedings, pursuant to section 69ZT(3) of the *Family Law Act 1975* (Cth). This question arose due to the gravity of allegations of sexual impropriety made by the mother against the father concerning the children, and the father's subsequent counter-allegations of psychological abuse by the mother. The court was required to determine if the circumstances were exceptional enough to warrant the application of formal evidentiary rules, considering the importance and nature of the evidence, its probative value, and the court's powers to manage the proceedings.

Cronin J reasoned that the allegations were extremely serious, impacting the suitability of each parent and potentially rebutting the presumption of equal shared parental responsibility. The court noted the lack of communication between the parties and the significant impact that findings of fact could have on the children's future arrangements. Given the nature of the proposed evidence, including reports from a forensic psychiatrist and a psychosexual psychologist, and the dispute over uncorroborated allegations, the court found the case to be exceptional. Consequently, with the agreement of all parties, the court ruled that the *Evidence Act 1995* (Cth) would apply to the proceedings.

The court then made a series of procedural orders to facilitate the hearing, including directing that evidence in chief be given by affidavit, setting a hearing date in July 2013, and requiring amended applications and responses to be filed. Further orders addressed the filing of affidavits, the preparation of an updated family report at the parties' joint expense, and the release of subpoenaed material. The court also stipulated that failure to comply with the orders could result in the case being removed from the list, and that practitioners were to file specific documents electronically before the trial.