LISTER & LISTER

The case of Lister & Lister concerned a dispute where the husband challenged the validity of a "permission rule" within the Family Law Rules. The husband argued that this rule, which required permission to adduce expert evidence, improperly restricted a party's right to present admissible evidence and interfered with the court's ability to make just and equitable property settlement orders under section 79 of the *Family Law Act 1975* (Cth). He contended that the rule was *ultra vires* the rule-making power and, in the alternative, should be read down to conform with the *Evidence Act 2009* (Cth).

The central legal issue before the court was whether the permission rule, as it applied to the adducing of expert evidence, was inconsistent with the *Evidence Act 2009* (Cth) and, if so, whether it was invalid or should be interpreted narrowly. Specifically, the court had to consider the interplay between the Family Law Rules and the provisions of the *Evidence Act* concerning the admissibility and exclusion of evidence, including sections 8, 11, 55, 56, 135, and 136. The court was also required to examine the historical concerns that underpinned the introduction of such rules, particularly regarding the potential for partisanship in expert evidence within the adversarial system.

The court's reasoning focused on the purpose and operation of the *Evidence Act* and the Family Law Rules. It acknowledged the historical concerns about the partisanship of expert witnesses, citing various judicial and academic commentary, including the work of Lord Woolf and Australian judges, which highlighted the potential for experts to be influenced by the parties who retained them. The court noted that the *Evidence Act* itself provides mechanisms for controlling the conduct of proceedings and excluding evidence where its probative value is outweighed by dangers such as unfair prejudice, misleading or confusing evidence, or undue waste of time. However, the court also recognised that the *Evidence Act* does not, by its terms, override the operation of other Acts or rules that provide for the admissibility of evidence, except where expressly stated or by necessary intendment. The court considered whether the permission rule went beyond the scope of the court's general powers to control proceedings and whether it impermissibly fettered the court's duty to achieve a just and equitable outcome.