Tendency evidence is evidence that can be used in court cases to prove that because a person acted in a particular way in the past, that the same person may act in the same way on a future date.
The Federal Circuit and Family Court of Australia recently considered if tendency evidence can be used in Court cases involving the care of children.
Usually, special rules of evidence apply to tendency evidence. However, in parenting proceedings, large parts of the Evidence Act, including the rules relating to Tendency Evidence do not apply. In those circumstances, all evidence can be used if it is relevant.
In some cases, however, such as where there is an allegation of an unacceptable risk to a child, then the Court can reinstate the rules of evidence. This frequently occurs where there is a disputed allegation which is important to the case, such as an allegation of child sexual abuse.
The Tendency Rule
If the rules of evidence apply, tendency evidence cannot be used unless:
- The party seeking to use tendency evidence gives reasonable notice in writing to the other party; and
- The Court believes that the evidence will assist the Court in determining whether the act occurred.
How can tendency be used in parenting proceedings when the rules of evidence do apply in parenting proceedings?
Tendency evidence can be used to assist the court in deciding if a parent’s character, reputation or conduct can be used to prove a contested fact, such as whether a person perpetrated child abuse. For example, if a person acted in a sexualised way towards or in the company of children in the past, tendency evidence can be used to suggest that a person may have again acted in a sexualised way with a particular child on occasion that is disputed.
A Court may then use that evidence to make a positive finding that the allegation is true if the Court is satisfied using the evidence that the act has occurred on the balance of probabilities. The balance of probabilities requires an “actual persuasion” of the fact that an event occurred.
How can tendency evidence be used if the rules of evidence do not apply in parenting proceedings?
The recent decision of the Court in Isles & Nelissen the court found that when a case involves an assessment of whether there is an unacceptable risk of harm to a child in the future, this involves an assessment of the possibility of whether there is a future risk to a child rather than determination of the whether an event occurred in the past.
The Court found that the tendency rule is not applicable when assessing a future risk. Therefore, any evidence that is relevant to the assessment of the possibility of risk is admissible and should be taken into consideration by a Court regardless of whether it meets the definition and the threshold requirements for admissibility under the tendency rule.
The Court found in that case that they should not be limited to evidence that would only be admissible under the tendency rule and that the evidence of past sexual interest and any interest in child exploitation material (subject to any objection) was relevant in deciding whether the child was exposed to an unacceptable risk of harm on a future basis.
The Court determined that even if the Court applied the rules of evidence, as it related to tendency evidence, such evidence would still be admissible because it was relevant to the issues in the case as to whether an unacceptable risk of harm occurred.
What are the consequences of this decision?
Our firm recently drafted an article which discussed how the Court’s approach to a future risk of harm will be considered and that article can be found here. The recent decision in Isles and Nelissen has further confirmed that tendency evidence can be utilised in various ways in parenting proceedings to assist the Court and children when assessing risk.
It is extremely important that if there is a question about whether there is an unacceptable risk of harm to a child, that specialised legal advice is obtained so that all evidence is available to a Court when in determining whether there is an unacceptable risk of harm to a child in any parenting proceedings.
If you have any questions regarding parenting proceedings in the Federal Circuit and Family Court of Australia or any associated family law matter, please contact our firm to make an appointment with Matthew Carney, an Accredited Specialist in Family Law on 4944 3322.
