Tendency evidence in the Family Court: Silver & Pilot (No 3) [2024] FedCFamC1F 17
A recent decision of the Federal Circuit and Family Court of Australia has considered the admissibility of affidavits filed by a party’s ex-partner as tendency evidence, as well as the use of evidence filed in earlier proceedings.
In this parenting matter, the Mother sought to rely on two affidavits filed by ex-partners of the Father to allege that he had a tendency to engage in family violence. Tendency evidence is evidence “of the character, reputation or conduct of a person, or a tendency that a person has or had”, adduced to prove that the person “has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind”.
The Mother and Father were first involved parenting proceedings between 2018 and 2020, where they signed Consent Orders on the last day of the final hearing. These orders provided for the children to live with the Mother and spend significant overnight time with the Father. In May 2022, the Mother stopped all time between the children and the Father, alleging the Father committed acts of family violence including sexual abuse of the children. A second set of proceedings took place between 2022 and 2024. The Father contended that the Mother was intentionally undermining his relationship with the children.
The Father and the Independent Children’s Lawyer objected to the affidavits from the ex-partners being relied upon for a number of reasons, including that:
- The Mother had filed the evidence from his former partners in the first set of proceedings but had chosen not to rely on it. Furthermore, because she had consented to orders which were inconsistent with that evidence being correct, she should not be permitted to rely on the evidence during the second proceedings;
- The Mother sought to rely on this evidence at the last minute, despite clear pre-trial directions stating that evidence from the first set of proceedings could not be relied upon; and
- To permit the Mother to rely on these additional affidavits would require an adjournment of the final hearing to permit the Father to respond.
Issue estoppel
The argument that the affidavits were inconsistent with the Mother’s earlier consent was rejected.
The Court referred to an earlier decision of Fowler & Northwood [2022] FedCFamC1A 173, which held that there is no concept of issue estoppel in family law. If it was the case, as it was here, that a party consented to orders and then subsequently filed evidence that was inconsistent with such consent, the Court would be “entitled to evaluate any evidence adduced by her … prior to her assent to the orders with a healthy degree of scepticism, because she willingly overlooked such concerns when she agreed to the orders allowing the children to spend substantial time with the father.”
The Court is accordingly entitled to limit the weight to be accorded to the inconsistent evidence. This is, however, very different from there being an obligation to disregard such evidence.
Admissibility of tendency evidence
The Court also considered whether the affidavits could be allowed into evidence to support the Mother’s argument that the Father had a tendency to commit family violence. Section 69ZT precludes certain rules of evidence from applying in child-related proceedings, including tendency evidence, unless the Court determines they apply. If such evidence is admitted, the Court has the power under section 69ZT(2) to “give [the evidence] such weight (if any) as it thinks fit.” The Court would ordinarily apply the excluded sections of the Evidence Act to a specific factual controversy, such as an allegation of child sexual abuse or where a party seeks a positive finding of criminal conduct, rather than to the proceedings as a whole.
However, tendency evidence would not be used to directly assess risk. The Full Court in Isles & Nelissen has made clear that the issue of unacceptable risk is not something capable of empirical proof – it is something which requires a forecast. Here, the use of the evidence of the Father’s former partners could not be used to “prove” that the Father had a tendency to commit acts of family violence and was therefore an unacceptable risk to the children. Rather, it would be admissible more broadly because it was relevant and probative of the fact in issue, being the risk, if any, of the Father to the children.
Relevance and probative value
Given that the tendency rule nor the Father’s argument of ‘issue estoppel’ excluded the evidence, the Court turned to consider whether the evidence could be excluded on the basis of relevance. The Mother contended the evidence of the ex-partners was relevant to establish that the Father had a tendency for family violence and acted in such a way in her case. She also relied on the evidence to prove that the Father was an unacceptable risk of harm to the children. This argument would be unlikely to hold up considering Nelissen precluded tendency evidence from being used to “prove” risk, but this was not determined.
The Court agreed that the evidence was relevant, rejecting the Father’s arguments that the probative value of the affidavits was outweighed by the undue waste of time that consideration of them would cause. Family violence and risk were viewed as significant matters which took precedence over any potential waste of time.
The final hearing was accordingly adjourned to allow the Father time to respond to the new evidence, but commented that the weight to be accorded to the affidavits would be a matter for determination.