Background 

Parenting proceedings listed for a 7-day trial before Justice O’Brien in the Family Court of Western Australia. Between them, the parties sought to call evidence from 25 witnesses. 

Agreed Facts 

Notwithstanding the breadth of proposed evidence, the parties were in agreement on the following: 

• There was no risk of the children being exposed to family violence, abuse or neglect. 

• The children had loving and meaningful relationships with each parent. 

• Each parent was competent and attentive in their physical care of the children. 

• The children wanted to spend time with each parent and with grandparents on both sides. 

• No member of either extended family posed any form of risk to the children, other than negativity about the other parent. 

• Joint decision-making was problematic given the state of the parties’ personal relationship. 

Both parties alleged the other’s negativity caused a risk to the children’s emotional safety. They could not agree on arrangements for the children, education or medical issues. Each, however, accepted the other was a devoted and engaged parent. 

Pre-Trial Status Conference — Observations of Justice O’Brien 

Evidence Principles 

His Honour referred to Rule 239 of the Family Court Rules 2021 (WA), which requires evidence to be limited to facts that are relevant to matters in issue, admissible, and of probative value. Key observations included: 

• Parties and lawyers must clearly identify the matters actually in issue at an early stage. 

• Opinion evidence is not admissible to prove the existence of a fact. 

• Admissibility does not equate to relevance, nor probative value. 

• The making of parenting orders is a prospective and predictive exercise focused on the best interests and safety of children. While informed by relevant past events: 

• it is rarely informed by the content of what have been described as ‘cradle to grave’ affidavits. 

Legislative Framework 

General provisions: 

• Section 95 — overarching purpose. 

• Section 96 — duty on parties to conduct proceedings consistently with the overarching purpose; lawyers must assist clients to comply. 

• Section 98 — enables Rules to provide for evidence to be given on affidavit. 

Child-related proceedings: 

• Section 102NE — the Court must: actively direct, control and manage proceedings; consider the impact on the child of the manner in which proceedings are conducted; and ensure they promote cooperative and child-focused parenting. 

• Section 102NH — general duties of the Court. 

• Section 102NJ — the Court may make findings and determinations at any stage. 

• Section 102NN — Court’s general duties and powers relating to evidence, including power to give directions about: 

• matters on which the parties are to present evidence; 

• who is to give evidence on each issue; 

• how particular evidence is to be given; 

• whether evidence on a particular matter, or of a particular kind, is not to be presented; 

• limiting the number of witnesses. 

Duties of Lawyers 

His Honour made detailed observations about the professional obligations of legal practitioners: 

• Lawyers have overarching duties as officers of the court and must not act as the mere mouthpiece of their client. 

• They must exercise independent forensic judgment, and may — contrary to instructions — confine a hearing to the real issues and present the case as quickly and simply as is consistent with its robust advancement. 

• That overarching duty extends to the forensic judgment required in relation to affidavits: it includes deletion of inadmissible, irrelevant or gratuitous content, and extends to a duty to refuse to file an affidavit of no relevance or probative value. 

• Clients and witnesses may prepare first drafts, but the lawyer bears independent responsibility for the content before it is placed before the Court. 

Many [affidavits], which had been drafted by the deponents, had annexed to them no less than 220 happy photographs of the children. It cannot be suggested that any of those photographs had any probative value whatsoever. While it is understandable that self represented litigants might mistakenly think that such photographs have a legitimate forensic purpose, there is frankly no excuse for lawyers seeking to adduce them into evidence. 

His Honour also noted that in many cases before the Court there are less benign examples of affidavit material that is irrelevant, gratuitous or offensive, and that where such material has been prepared or filed by a lawyer, the duties already described have not been met. 

Disposition 

The parties were permitted to rely on their own affidavits. Of the 13 other witnesses proposed by the Husband, only the Husband’s mother and his psychologist were allowed. The Wife was permitted to rely on her mother, the single expert witness, the family therapist, her psychologist, one of the children’s paediatricians, and the children’s GP. Sixteen other affidavits were excluded. 

Conclusion 

His Honour’s conclusion (paragraphs 94–101) is reproduced in the full judgment. Key observations included: 

• The affidavits excluded should never have been filed; the pre-trial process of exclusion should have been entirely unnecessary. 

• The parties incurred unnecessary costs and their progress to trial was delayed. 

• The inflated estimate of 7 days constrained listing options, denying earlier hearing dates to these parties and other families. 

• This was not an isolated example; reducing such failures would reduce delays and better serve the public. 

• The Court acknowledges the significant pressures on practitioners but confirmed those pressures do not excuse non-compliance with professional obligations. 

• Adherence to clear professional obligations is itself a complete answer to many client demands — and will more often alleviate perceived pressure than exacerbate it. 

• The judgment is intended as a reminder to the broader profession of the need to be attentive at all times to professional obligations.