Child-Evidence

To be or not to be on the witness stand – Evidence of children in family law matters

Madison Kelly ||

Can a child be a witness in your family law matter?

Section 100B(1) of the Family Law Act 1975 (Cth) states that a child is not to swear an affidavit unless the Court makes an Order for that child to do so.

If a party seeks to rely on an affidavit of a child, they must file an affidavit that:

  • Sets out the facts being relied upon to support the application;
  • Includes the name of a support person; and
  • Attaches a summary of the evidence to be cited from the child.

Even if affidavit evidence is allowed, leave (which means permission of the Court) is required for a child to be cross-examined.

In considering whether to allow the cross-examination of a child, the Court must consider:

  • Whether the proposed examination is likely to provide relevant information that’s unlikely to be obtained otherwise;
  • The qualifications of the person who proposes to conduct the examination;
  • Whether any distress likely to be caused to the child by the examination will be outweighed by the value of the information that might be obtained;
  • Any distress already caused to the child by any previous examination associated with the proceedings;
  • Any other matter that the Court thinks is relevant.

The Court will also consider other factors such as:

  • The maturity of the child
  • The nature and strength of the evidence
  • Whether evidence is reasonably available from other sources

The Court must carefully balance the value of the evidence to resolve the issue between the parties with the possible distress to the child.

Guidance with sensitive matters

When children may be asked to give evidence, the law requires a careful balance between fairness and wellbeing. In these situations, our Family Law team can guide and support you through every step of the process.

Disclaimer: This article is for general information purposes only and is not a substitute for legal advice. For more details, please read our full disclaimer.

Share:

Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.

Categories
Archives
Author

More posts

Business people shaking hands, finishing up a meeting.
Joint venture vs. partnership

Joint venture or partnership? We explain the differences and highlight the pros and cons of each structure.

A woman works from home. She's sitting at a desk with a Christmas tree in the background
Employment arrangements during the holiday season break

Many businesses will be preparing for a shutdown period over the upcoming holiday season break. Earlier this year, standardised shutdown provisions were inserted into the majority of modern awards. These covered how you could direct employees to take annual leave or unpaid leave during an annual shutdown

Year-end land tax and foreign surcharge – What you need to know

With 31 December 2025 fast approaching, if you have not done so already, we encourage you to review/double check your property arrangements and documentation. Assessments for land tax and foreign surcharge are issued around this time, and understanding your obligations now can help you avoid unexpected liabilities.

Key changes to Paid Parental Leave under Baby Priya’s Law

Last month, the Australian Government passed landmark legislation called the Fair Work Amendment (Baby Priya’s) Act 2025, providing additional protections for employees who receive employer-funded paid parental leave.

A father and daughter look at a tablet together
Changing a child’s name after separation

Separation can bring with it a range of emotions and the dispute between separating parents can be far and wide, including whether the surname of a child should be retained or changed.

Photo of a woman handing a child a bag
When child support doesn’t cover the costs – What you can do

In Australia, child support is governed by the Child Support (Assessment) Act 1989 (Cth). It is processed through Services Australia (Child Support) where a formulaic approach is taken to determine the amount of child support payable by one parent to the other.

© 2026 Coleman Greig Lawyers  |  Sitemap  |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230