This article will discuss general matters concerning procedure and evidence under the Family Law Act 1975. People cannot simply walk up in court and present a case with baseless allegations. To successfully proceed with a court case, it’s necessary for people to support their claims with evidence. People may provide different types of evidence which are:
- Real evidence: This is any material that was present during the crime.
- Documentary evidence: Any evidence that builds up the documentation of events leading to crime which is often presented in trials.
- Demonstrative evidence: This can back up testimonies to prove whether a case is wrong or right
- Testimonial evidence: This is the simplest form of evidence that they provide orally or in writing. People who give testimonial evidence reveal what they saw before, during, or after a crime.
- Digital evidence: These are digital forms of evidence such as digital records. Some examples are audio and video recordings, text messages, or retrieved call logs.
These types of evidence are necessary for court procedures to continue. Without these, courts may adjourn court hearings or make a decision based only on what people present to them. Indeed, people may feel uncomfortable when they realise that a court outcome could have turned out differently if there were more credible pieces of evidence. Read on to know more about general matters concerning procedure and evidence.
Section 97 and 98: How Australian Courts Handle Procedure and Affidavits
According to Section 97 of the Family Law Act, all proceedings in the Federal Circuit and Family Court of Australia (FCFCOA) or in a territory court shall be heard in open court. However, proceedings in the Northern Territory are excluded. All proceedings that are heard in court are subject to the Family Law Act, the regulations and other applicable rules of court.
It is also mentioned that courts must give the public access to the proceedings through a video link, audio link, or other appropriate means. A person who has access to a proceeding’s video link, audio link or any other means must be present in the court. The regulations and the applicable rules of court may authorise the following to hear general matters concerning procedure and evidence :
- A judge, the Chief Executive Officer, a Senior Registrar, a court Registrar, and sitting in Chambers of Division 1 of the FCFCOA
- A judge, the Chief Executive Officer, a Senior Registrar, a court Registrar, and sitting in Chambers of Division 2 of the FCFCOA
- A judge, Registrar, or magistrate sitting in Chambers
When discussing general matters concerning procedure and evidence, it’s important to know about necessary orders that the court may make. Any proceedings in the FCFCOA or in another court, of its own motion or on the application of a party may make orders requiring:
- A specified person or specified persons’ presence in court during proceedings or during a specified part of the proceedings.
- A specified person or specified persons’ absence in court during proceedings or during a specified part of the proceedings.
- Each party’s legal representative and other person’s presence in court during proceedings or during a specified part of the proceedings.
Courts shall proceed without undue formality and make every effort to keep the proceedings brief. According to Section 98, the applicable rules of court may provide evidence of any material given on affidavit at the hearing of:
- Divorce or validity of marriage proceedings that are undefended at the time of the hearing
- Other proceedings other than divorce or validity of marriage proceedings
Section 98A: Absence of Parties in Proceedings
It’s also important to discuss the absence of parties during general matters concerning procedure and evidence. There are factors that can help determine the absence of parties or their legal representatives in court. These factors are set out below.
- Undefended proceedings
- There are no children of the marriage who have attained the age of 18 years.
- The applicant has requested the court to push through with the proceedings in the absence of the parties
- The respondent has not requested the court to push through with the proceedings in the absence of the parties
- One or both of the parties of a marriage has requested the court to push through with the proceedings in the absence of the parties. This statement is true if there is a jointly instituted marriage on the date fixed for the hearing for a divorce order.
General Matters Concerning Procedure and Evidence: Court Considerations
According to Section 98A, courts will determine divorce proceedings if there are children of the marriage who are over 18. Additionally, courts will determine divorce proceedings if they are satisfied there are arrangements made for the care, welfare, and development of children of the marriage under 18.
There are also other court considerations when discussing general matters concerning procedure and evidence. Courts still recognise a child of the marriage even if that child is adopted, an ex-nuptial child (a child whose parents weren’t married at the time of the child’s birth) of either party or a child who is not a child of either of them. This is true if both parents treated the child as a child of marriage at the relevant time. This relevant time is:
- The time immediately before the parties separated permanently or on more than one occasion
- The time immediately before when they last separated before the institution of the divorce order proceedings
General Matters Concerning Procedure and Evidence: Case Example
For instance, Monica and Eric have decided to adopt two children after their marriage. Let’s name these two children Edbert and Nicole. Both Monica and Eric made Edbert and Nicole feel like they were part of the family. They occasionally went on vacations and even got to meet the couple’s friends and family members.
Unfortunately, Monica and Eric decided to separate and Edbert and Nicole were still under 18 when the separation happened. The couple then went to court to initiate a divorce order proceeding. Monica and Eric had a smooth divorce proceeding since the court saw the couple treating both the adopted children as their own. Moreover, they have made a parenting plan that sets out:
- The exact time of child changeovers
- How the adopted children will go to school
- What hospital or doctors will the children go to in the event that they need medical attention
- Provisions in case the parenting plan fails or if either parent is not available for childcare
Section 100: Evidence of Husbands, Wives, or Spouses
According to Section 100, the parties to the proceedings are competent and compellable witnesses. These parties are referred to as husbands, wives, or spouses. In our case example, Monica and Eric are competent and compellable witnesses. Section 100 also states that parties to a marriage are:
- Competent and compellable to disclose communication made between each other during the marriage
- Competent and compellable to disclose communication made between each other after the date of the commencement of the Family Law Act.
How Our Family Lawyers Can Help With Procedure and Evidence
It’s only natural for disputed parties to seek their own independent legal advice when going through general matters concerning procedure and evidence. This is especially true if these parties are opting for divorce proceedings that involve children.
Contact us today if you have more concerns relating to general matters concerning procedure and evidence.