The role of the Evidence Act in Family Law

13 July 2025 in Family and Divorce Law | 4 min read | skip to FAQs

This brief article explores the application of section 91 of the Evidence Act 1995 in Family Law matters, and the role of evidence in child-related proceedings.

The Evidence Act

The Evidence Act 1995 (Cth) outlines the guidelines applicable to different types of evidence and how they can be used in all proceedings in a federal court.

The Family Law Act

The Family Law Act 1975 governs the rules when determining family law disputes including child-related proceedings, divorce and property.

The Importance of Evidence in Family Law

Obtaining and relying on evidence is a necessary component to support any legal case. Evidence is information that can be provided to the court to prove any matter of fact, tendency or design of which is to produce in the mind an affirmative or negative persuasion of the existence of some other matter of fact (Cheney v Spooner (1929) 41 CLR 532).

In family law, there are various types of evidence that the court will consider. These include:

1. Affidavits.
2. Subpoenas.
3. Financial Statements.
4. Expert witnesses.
5. Witness Statements

In a family law matter, all parties have a duty to disclose all documents and information in their power, possession or control that are relevant to the issues in dispute. This usually includes financial documents (known as financial disclosure) which can be in the form of bank statements, pay slips, tax returns, loan documents or business records.

At a Final Hearing, all evidence, including affidavits, financial documents and subpoenaed material will be examined and tested. Witnesses may be called to give oral evidence and may be cross-examined on the contents of their affidavit. Any documents a party seeks to rely upon must have been properly disclosed beforehand, in line with the duty of disclosure. Failing to disclose relevant material may effect a party’s credibility and may result in evidence being excluded.

Section 91 of the Evidence Act 1995

This section provides the rules regarding the exclusion of evidence of judgements and convictions as follows:

1. Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
2. Evidence that is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

Therefore, section 91 prevents existing judgements from being tendered for the purpose of proving the existence of those facts. However, it does not prevent the tender of judgements which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered (Ainsworth v Burden [2005] NSWCA 174).

The following recent Family Law case explains how section 91 is applied in practice.

Dajani v Dajani [2025] FEDCFAMC1A 28

This case involved an appeal from property settlement orders made by a judge of the Federal Circuit and Family Court of Australia. The judge determined that the respondent’s contributions had been made more arduous by acts of the appellant. The ground for appeal relevant to section 91 is whether the primary judge erred in admitting the sentencing remarks into evidence. It was noted that section 91 extended to sentencing remarks (Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341). Hence, the remarks were not admissible to prove a fact that was in issue.

Although, the court deemed that the submission made in the wife’s case were acceptable as the document was not tendered for the purpose of proving the facts in issue of this case. Rather, the tendered sentence remarks were “merely to provide facts from which inferences may be drawn” regarding how the wife’s contribution was made to be more arduous. Therefore, section 91 did not exclude the admission of the sentencing remarks.

Family Law Provisions – Child-Related Proceedings

The Family Law Act 1975 includes provisions in addition to the Evidence Act 1995 (Cth) that govern the use of evidence in cases involving children.

The court must consider:

1. the child; and
2. each person who has care of the child (whether or not a person has parental responsibility for the child.

In considering the matters set out above, the court must include consideration of:

1. any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
2. any family violence order that applies or has applied to the child or a member of the child’s family.

Further, the court may, in child-related proceedings receive into evidence the transcript of evidence in any other proceedings before:

1. the court; or
2. another court; or
3. a tribunal.

The court is allowed to draw any conclusions of fact from that transcript that it thinks proper, and adopt any recommendation, finding, decision or judgment of any court, person or body (i.e. the child or person/s who has care of the child).

How can BSM Sydney Lawyers assist you?

The rules of evidence in family law matters can be complex. It is highly advisable to consult with an experienced family lawyer to gain a clear understanding of what can and cannot be admitted in court. The family lawyers at BSM Sydney Lawyer have the legal expertise, compassion, empathy and professionalism to assist and advocate for your best interests. Our family legal team will ensure that you get a fair and equitable outcome. BSM Sydney lawyers have expertise in family and divorce law and are up to date with the most recent changes and legislative amendments. Our family lawyers will advocate for you and protect your rights, guiding you through the evidence process. BSM lawyers Sydney provide a free, no obligation, 20 minute consultation.

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