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.
