Children – mother’s evidence of violence between father and his ex-wife lacked probative value and admission would waste time

In England & Harrisson [2020] FamCA 1083 (18 December 2020) Altobelli J heard a parenting case where the mother sought to relocate from Sydney to New Zealand with the parties’ 2-year-old child (X) on an interim and final basis.

Each parent alleged that the other had perpetrated controlling violence during the relationship in the presence of X.

The mother filed an affidavit from the father’s ex-wife (Ms B) who lived in the United States. Ms B’s affidavit was 24 pages long and described a history of family violence perpetrated by the father “in quite meticulous detail” ([14]). The father sought that the affidavit be struck out and removed from the court record pursuant to s135 of the Evidence Act 1995 (Cth).

The court said (from [15]):

“ … [I]t was … submitted that Ms B’s affidavit goes to the longitudinal nature of the father’s propensity for family violence and that his violent behaviours were not confined to the … short relationship between the parties (…)

[16] The father’s opposition to the … affidavit focused on its lack of relevance, its unfair prejudice to him, as well as the inevitable consequences of having to extend fairness to him by presenting evidence in reply to the evidence of Ms B (…)

[19] … [T]he mother seeks to use Ms B’s affidavit to establish the father’s tendency towards family violence in intimate relationships. (…)

[20] The predictive value of evidence of behaviour in … similar situations such as intimate relationships allegedly characterised by violence can only be useful if it is incontrovertibly true that past behaviour is predictive of future behaviour. But that is not incontrovertibly true. (…) The Court’s impression of Ms B’s evidence is, therefore, that its probative value is low. (…)

[26] … [T]he father has identified nine witnesses who he would need to call, in addition to this own evidence …. [H]e has foreshadowed that he may need to produce documentary evidence from Country F of up to 1000 pages … [T]he mother’s representative … had to accept that the mother could not constrain the father’s case in response to Ms B’s affidavit. (…)

[31] … [T]he admission of Ms B’s evidence is therefore not permitted on the basis that it lacks probative value and its admission would cause or result in undue waste of time.”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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