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Evidence for Family Lawyers
Author(s): Kathryn Lellman, Her Hon Judge MacKenzie
Published: 21 June 2011 Pages: 148
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IntroductionThe starting point for this paper is to consider what is evidence and what is its purpose in the Family Court. His Honour Principal Family Court Judge Boshier wrote in his forward to NZLS Seminar “Preparing and presenting evidence in Family Court” in July 2005: The task of the Court is to undertake a forensic exercise, with the skilled assistance of counsel, designed to lead to a decision determining the dispute before it. The tendering of evidence in the correct fashion, with a clear focus on such issues as relevance and admissibility, is a vital part of that forensic exercise. It is the place of the practitioner to facilitate and expedite the process, exercising professional care and skill. Neither the Court nor the participants in the hearing are assisted by practices that are any less than rigorous. Evidence is information which assists the Court to determine the facts. Evidence is not submission, argument, inexpert opinion or law. Evidence is adduced by witnesses who deal with facts. The Family Courts Act 1980 established the Family Court from 1 October 1991, 30 years ago. It established a specialist court which was expected to operate differently to the District and High Courts. It was envisaged that these different styles and philosophies would create a more informal and relaxed approach to proceedings and indeed s 10 of the Family Courts Act specifically provided that proceedings in the Family Court were to be conducted “in such a way as to avoid unnecessary formality”. Thus, counsel and parties remained seated through proceedings, gowns and wigs were not worn by counsel, or judges and the Courts were essentially private to the parties. The “any evidence” rule, prevalent in family law legislation, was intended to assist with unnecessary formality and speedy and expeditious disposition of proceedings. In more recent times, a number of these more informal practices have been reviewed, in part in response to the concern that the Family Court had become too informal and relaxed and was no longer fulfilling the role of forensic examiner. Thus Family Court Judges now wear gowns and counsel stand when addressing the Court. But what of the approach to the evidence received? This paper endeavours to explore that. |
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