The Child Witness in the Family Court

John Foulsham
Principal Legal Officer
Department for Community Services
Perth

he laws on using children as witnesses are riddled with inconsistencies. In this

T paper the rules on the calling of child witnesses in the Family Court will be
compared with the rules in criminal cases to demonstrate the different approaches
which have been taken. There will be a discussion of the difficulties that children have in
putting their evidence to the court and suggestions on ways in which the rules can be made
more consistent while still protecting the child.

Children's Evidence in the Family Court

Children are not encouraged to give evidence in the Family Court. In proceedings in relation
to a child, the court is obliged to regard the welfare of the child as the paramount
consideration (s.60D Family Law Act 1975).
In making orders in relation to custody or guardianship of a child the court has to
consider any wishes expressed by the child on the matter and give them such weight as the
court considers appropriate (s.54 (1) (6) Family Law Act 1975).
The court obtains information about the child's wishes from evidence of what the child
has said to adults such as the parties or expert witnesses, from a court counsellor's report,
or from information provided by a separate representative for the child.
The judge may interview the child in chambers either alone or in the presence of
another person. Anything said at the interview is not admissible in evidence.
A child may not be called as a witness or remain in court unless the court orders
otherwise. The only exception is in the case of a child who is, or who is seeking to become,
a party to the proceedings.
A child is defined to mean a person under eighteen years of age (Family Law Rules
Order 23 Rules 1 and 5). As a result of these rules children rarely have a direct input into
Family Court decisions. The child's wishes are communicated to the judge through a third
party. There are advantages to this procedure: the child does not have to attend court and
have their schooling disrupted, nor are they cross-examined by hostile lawyers, and they can
be interviewed about their wishes by a neutral person in familiar surroundings.
On the other hand it does mean that the court receives hearsay evidence of what the
child has said. In a case where physical or sexual abuse is alleged against a parent it means
that this second-hand evidence is set against the evidence of an adult who can give evidence
in court on oath denying it.
In the Family Court of Western Australia the judges generally require corroboration of
evidence of a child before they are prepared to believe that sexual abuse has occurred. This
 214 CHILDREN AS WITNESSES

would require something more than the child's statement even though it has been repeated to
a number of different people.

The Criminal Courts

Where the child is the accused

In Western Australia the age of criminal responsibility is seven. A child of this age who is
accused of a criminal offence can appear in court and may be required to give evidence in
their own defence. In practice few children so young appear before an adult court. But
children of around twelve frequently appear before Children's Courts. Children of fourteen
and upwards can be sent to adult courts for trial and all children on murder charges have to
be tried by the Supreme Court.
As defendants, particularly on serious charges, children are represented. But they are
still expected to answer in public before the law in the same way as an adult. Children
suspected of offences are liable to be questioned by police. There are rules in most states to
encourage police to interview children in the presence of an independent adult, but if the
rules are broken the court has the discretion to admit the evidence anyway (Frijaf v. R
[1982] WAR 128).
There are no special rules to protect the child defendant in a criminal hearing. It is
assumed that the child is capable of relating their version of events which can be weighed
against the evidence of the prosecution witnesses.

Where the child is the complainant

When an adult is on trial and a child is a witness there are special rules to protect the adult.
A child under twelve can only give evidence on oath if the court considers that they
understand the nature of an oath.
A child may give unsworn evidence but this evidence must be corroborated by some
other evidence, which may not include the unsworn evidence of another child (s.101
Evidence Act 1906 (WA)). Even in the case of sworn evidence given by a child, a judge
should warn the jury that there is a risk in acting on the uncorroborated evidence of a child
(Byrne & Heydon 1986). The result is that prosecutors require corroboration before
charging a person with an offence against a young child. An offender who assaults or
commits a sexual offence against a child in private and who will not confess under
interrogation suffers no consequences. Worse still they can go before a civil court and claim
they must be innocent because they have not been prosecuted.
If a child does have to give evidence against an adult they can be cross-examined at
length. They are intimidated by the practice and procedure of the court and exasperated by
the delays. The court is obliged to treat their evidence as inferior to that of an adult.

Assessment of Children's Evidence

My own experience in criminal cases is that children make very reliable witnesses. It is
always important to get information from children first-hand. So often adults want to take
over and tell what they think the child said or ought to have said. If children are allowed to
relax and tell what they have to say in their own way then it is well worth listening to.
It is pleasing to note that evidence is coming forth that young children are reliable
witnesses. For example, at a conference organised by the National Children's Bureau,
Professor Graham Davies described recent research which shows that although children
remember less than adults, they are no more inaccurate in what they remember. Also
children were able to differentiate clearly between what they had seen and what they had
imagined (The Law Society's Gazette, 10 February 1988).
 THE CHILD WITNESS IN THE FAMILY COURT 215

Children giving evidence in their own defence are just as involved in the case and as
mindful of the consequences as children who are witnesses against an adult, or who are the
subject of custody or access proceedings in the Family Court. Consequently it is suggested
that children should have more of an opportunity to participate in Family Court proceedings
which concern them.
Methods are being developed to allow children to give evidence without the adults who
might inhibit them from speaking freely, being present. For example, instead of a mere
report on the children's wishes there is no reason why a court counsellor could not
videotape the interview with the child and produce the video with the report. Better still the
Family Court could use one of the closed-circuit television systems which are being
developed in New South Wales and Western Australia. In New South Wales the child is
examined and cross-examined over closed-circuit television while out of the court. In
Western Australia the child will give evidence in court while the accused is out of court
watching on closed-circuit television (Child Welfare Act Amendment Act (No.2) 1987
(WA)).
These procedures would allow the Family Court to get direct evidence from children.
In cases where sexual abuse is alleged the burden of proof is less strict in the Family Court
than in a criminal court. The court may make a finding against an adult on the
uncorroborated evidence of a child but, unless the child gives evidence, the court is unlikely
to make such a finding.
There remain benefits in preventing a child being compelled to give evidence against
their will. The threat of being compelled to go to court and be cross-examined is something
that can be held over a child or a custodial parent while the proceedings are pending. This
can cause anxiety to the child. Perhaps the answer is to change the rules and give the
discretion to the child as to whether they should give evidence, not to the court. An accused
person cannot be compelled to give evidence in their own defence and it is suggested that
the child should have a similar right to decide whether or not to give evidence in the Family
Court.

Summary

This paper argues that there are inconsistencies between the Family Court, the Children's
Court and the adult criminal courts in whether children are permitted to testify and the weight
accorded to their evidence. It argues that the Family Court should give children more of an
opportunity to give evidence directly to the court while continuing to protect them from
manipulation.

Reference

Byrne, D. M. & Heydon, J.D. 1986, Cross on Evidence, 3rd Australian Edition,
Butterworths, Sydney.