Simon and Peters and Ors

In the Family Court of Australia, Justice Cronin presided over proceedings involving Mr P Simon (applicant), Ms Peters (first respondent), Mr Peters (second respondent), Ms West (third respondent), and Mr R Simon (fourth respondent), with an Independent Children’s Lawyer also participating. The dispute concerned final parenting orders for a four-year-old child, with multiple parties seeking residence and contact arrangements. The case involved complex allegations, including those of sexual impropriety against the paternal grandfather, drug use and mental illness concerning the mother, and a father currently serving a prison sentence for serious assault on the child.

The court was required to determine the application of the rules of evidence in these proceedings, specifically whether the provisions of the *Evidence Act 1995* (Cth) should apply, pursuant to section 69ZT of the *Family Law Act 1975* (Cth). This section permits the application of the *Evidence Act* if the court is satisfied that the circumstances are exceptional, taking into account factors such as the importance of the evidence, the nature of the proceedings, the probative value of the evidence, and the court's powers to manage the evidence. The court also needed to consider the relevance of evidence from the Department of Human Services, given the evolving claims for residence by the paternal grandfather and the mother.

Justice Cronin found the circumstances of the case to be exceptional, justifying the application of the *Evidence Act 1995* (Cth) pursuant to s 69ZT(3) of the *Family Law Act 1975* (Cth). His Honour reasoned that the seriousness of the allegations, the potential impact on the presumption of equal shared parental responsibility, and the need for a framework to test and admit evidence in a complex matter involving family violence and risk to the child, all indicated that the usual less formal approach to evidence was inappropriate. The court also directed that all evidence in chief be given by affidavit, with specific timelines set for the filing and service of amended applications, responses, and affidavits by each party. Further directions included the appointment of a family consultant to prepare a report, with specific issues to be addressed, and the application of the rules of evidence to all affidavits filed.