· 2026-10-14T02:49:50+0000 · 940 posts

Citation: Petersen [2026] FCWA 50

Sixteen Witness Affidavits Excluded, Trial Cut Down: WA Family Court Tells Lawyers to Keep Parenting Evidence to the Real Issues

In Bailey and Petersen [2026] FCWA 50, O'Brien J of the Family Court of Western Australia (Perth) dealt with how much witness evidence two represented parents should be allowed to put before the Court in a parenting trial where the real issues were narrow. The result: of 25 proposed witnesses, only the parties, the Single Expert Witness, the family therapist, four treating professionals (the two medical doctors and the two psychologists) and one lay witness for each parent were allowed. The affidavits of the other 16 proposed witnesses were not received into evidence ([91]–[92]). The important point is that admissibility is not the same as relevance or probative value ([12]). Lawyers have their own duty, as officers of the Court, to confine affidavits to what is relevant, even if a client (or a witness who drafted their own affidavit) insists otherwise ([22]–[26]). All paragraph references below are to the judgment.

Why it matters: Many parenting cases are built on a pile of character-reference affidavits from friends, relatives and neighbours. This judgment explains why most of that material does nothing in a case about the future care of children, and why it costs real time and money: here the seven-day trial estimate, and the listing options that went with it, were driven by the number of witnesses ([94]–[97]). It is also a clear statement from a Court of the Family Law Act's case-management duties in child-related proceedings, and of the duties of the lawyers who draft and file the affidavits ([14]–[24]).

🧩 Facts and Issues

A Western Australian case under the Family Law Act

The Family Court of Western Australia exercises jurisdiction under the Family Law Act 1975 (Cth) and applies its own Family Court Rules 2021 (WA) (cover notes; [9]). The rules cited here (r 239, r 311, r 312) are WA Rules, and the lawyers' conduct rules cited are WA's ([9], fn 5). Readers used to the Federal Circuit and Family Court rules should check the WA equivalents.
The reasons are marked "Reportable". The judgment is published under pseudonyms with the Court's approval under s 114Q(2) of the Family Law Act, and Part XIVB restricts publication of identifying details (cover notes). Names, places and some details are anonymised in the judgment and are not expanded here.

The parenting proceedings

The father (the applicant) began parenting proceedings on 12 May 2020. The parents have two young children. The case was listed for a seven-day trial before O'Brien J in 2026, based on the estimates of both parties, who were both represented ([1]).
Between them, the parties proposed to call evidence from 25 witnesses ([1]).
At a Status Hearing in early 2026, counsel confirmed what was common ground: no risk of family violence, abuse or neglect in either parent's care; loving relationships with each parent; each parent competent and attentive in physical care; the children want time with both sides of the family; no extended family member poses any risk other than negativity about the other parent; and joint decision-making is problematic ([3]).
Each party also contended that the children's emotional safety was at risk in the other's care, through exposure to negativity about the other parent. Each accepted the other was a devoted and engaged parent ([4]).
The Judge expressed surprise at the proposed length of trial, at seven lay witnesses for the mother and ten for the father, and at the unclear relevance of some professional evidence ([5]).

The case management steps

Counsel were ordered to be ready at the start of trial to explain why each affidavit (other than those of the parties, the Single Expert Witness and the family therapist) should be received ([6]).
Time for cross-examination and for opening and closing submissions was limited, with liberty to apply for more time during the trial ([7]).
At the start of trial, the Judge heard submissions on each witness and made the determinations. These are the Reasons for those determinations ([8]).

Issues

What principles govern the relevance and probative value of evidence in parenting proceedings, and the Court's power to limit it ([9]–[21])?
What duties do lawyers have about the content of affidavits, including affidavits drafted by clients or witnesses ([22]–[28])?
Which of the proposed affidavits should be received into evidence ([29]–[93])?

⚖️ Applicable Law – Legislation, Regulations, Rules

Under the Family Law Act 1975 (Cth):

s 95 – the overarching purpose of the practice and procedure provisions: a just resolution of disputes, in a way that ensures the safety of families and children, promotes the child's best interests, is according to law, and is as quick, inexpensive and efficient as possible ([16]).
s 96 – parties must conduct proceedings consistently with that purpose, and lawyers must take account of that duty and assist their client to comply ([17]).
s 98 – the Rules may provide for evidence of "any material matter" to be given on affidavit ([15]).
s 102NE – principles for child-related proceedings. The Court must actively direct, control and manage the conduct of the proceedings, consider the impact on the child of how the proceedings are conducted, and conduct them in a way that promotes cooperative and child-focused parenting ([18]).
s 102NH and s 102NJ – the Court's general duties, and the power to make findings and determinations at any stage ([19]).
s 102NN – the Court may give directions about the matters on which evidence is to be presented, who gives evidence on each issue, how evidence is given, the number of experts, and may limit written submissions, oral argument, time for evidence, cross-examination and the number of witnesses ([20]).
s 102NL – cited for the point that opinion and hearsay evidence can be admissible in parenting proceedings ([11], fn 1).
s 60B – cited for the Court's task of making orders that meet the best interests of the children, including their safety ([13], fn 3).
Part XIVB and s 114Q(2) – publication restrictions and the approval of the pseudonym (cover notes).

Under the Family Court Rules 2021 (WA):

r 239 – reflects the principle that evidence at trial is limited to facts that are relevant, admissible and of probative value ([9]).
r 311 and r 312(b) – the cover notes record that the reasons may be reviewed to correct minor typographical errors or record a variation to orders.

Lawyers' conduct rules ([23], fn 5):

Legal Profession Uniform Law Application Act 2022 (WA), the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA), r 17, and the Legal Profession Uniform Conduct (Barrister) Rules 2015 (WA), rr 42–43.

📌 Precedents Relied On

The judgment is mainly about statutory principles and professional duties. It cites little case law.

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743–744 [85] – cited ("See") for the clear distinction between the unqualified opinion of a lay witness and opinion evidence from a person who is an expert by reason of training, study or experience in a field of specialised knowledge ([12], fn 2).
The Honourable Peter Tree KC, "The Case for Tightly Controlling Cross-Examination of Lay Witnesses in Parenting Trials" (2025) 34(1) Australian Family Lawyer 16 – cited for the description of "cradle to grave" affidavits that rarely help the Court's predictive task ([13], fn 4).

🧠 Analysis

Issue

When both parents agree on most things (including that neither poses a safety risk beyond negativity about the other), can they call 25 witnesses in a parenting trial, and what must lawyers do about the affidavits they file?

Rule

Evidence at trial must be relevant to the issues, admissible and of probative value (r 239 of the WA Rules) ([9]).
Parties and their advisers must identify the matters actually in issue early, before affidavits are prepared ([10]).
Opinion evidence of a lay witness is not admissible to prove the fact the opinion is about. The fact that opinion and hearsay evidence can be admitted in parenting proceedings "only goes so far" ([11]).
Admissibility does not equal relevance, nor probative value ([12]).
Parenting orders are prospective and predictive. Past events inform them, but "cradle to grave" affidavits rarely do ([13]).
The Court must actively manage child-related proceedings (s 102NE) and has wide powers to limit evidence (s 102NN) ([18]–[21]).
Lawyers must exercise independent forensic judgment as officers of the Court, including over affidavit content, and must refuse to file an affidavit of no relevance or probative value ([22]–[26]).

Application

The issues were narrow, and the Court said so early

The Court did not wait for the trial to find out what was in dispute. Counsel had already confirmed the agreed matters at the Status Hearing ([3]–[4]). What remained in dispute included the parenting arrangements, education and medical issues, and the allocation of parental responsibility for medical decisions ([4], [86]). That is the lens through which each affidavit was tested.

Admissibility is not relevance

O'Brien J drew a clear line between what the rules allow to be received and what is worth receiving. Parenting proceedings are more flexible about hearsay and opinion, but "admissibility does not equate to relevance, nor to probative value" ([11]–[12]). A friend's view that a parent is a good person, or an in-law's views about the other parent's personality or career, answers nothing the Court has to decide about future care arrangements ([13], [45], [84]–[85]).

Concessions did most of the work

Several affidavits fell away because counsel conceded, or did not press, that the evidence had no probative value. This was the position for the father's friends, neighbours and relatives (for example [39], [41], [52], [54], [56], [58], [64]), and for the five lay affidavits the mother no longer relied on ([72]–[73]).

Contested affidavits that were still refused

A psychologist's affidavit from an interim dispute. The father relied on an affidavit sworn over five years earlier by a psychologist who had seen the parties for therapy and counselling over several years, some of it before the children were born. It was said to show the mother's approach to interpersonal dealings. The Court was not persuaded it had probative value, because the one incident relied on was admitted and the communication difficulties and negative attitudes were obvious and common ground ([33]–[37]).
Relatives of the father. The father's brother and sister gave positive observations of the father and opinions about the mother's temperament and demanding nature. The Court found their evidence added nothing to the evidence otherwise available, particularly given limited contact with the family and the fact that exposure to negativity was already common ground ([42]–[50]).
The mother's brother. His affidavit contained extensive family history and personal views about the father's character and career. Counsel for the father acknowledged that cross-examination would only explore relationship dynamics and "would likely add little" ([82]–[85]).

Some evidence was received for fairness, even though much of it was irrelevant

The Court did not simply exclude everything on the other side. It received the affidavits of each parent's mother because the other side perceived a forensic disadvantage if there was no chance to cross-examine, and because of the grandmothers' active involvement in the children's lives. Significant portions of both affidavits were found to be irrelevant ([59]–[62], [74]–[78]). Part of the argument for receiving the father's mother's affidavit involved an allegation about a video of a child, which she strenuously denied. This judgment makes no finding about it ([60]).

Treating professionals: relevance, currency and common ground

The paediatrician and the general practitioner were received because their evidence was "clearly relevant" to the medical issues in dispute ([86]–[90]).
Each parent's current treating psychologist was received because of the currency of their professional engagement, even though the other side confirmed it was no part of its case that the parent had a psychological or psychiatric disorder, and it was common ground that each functioned within normal parameters ([65]–[69], [79]–[81]).
Earlier, the Court had given the father's psychologist copies of expert reports for the express purpose of assisting therapy. That was not permission to critique the reports ([65]).

What lawyers must do

The strongest part of the judgment is the lawyers' duties section. Lawyers must not act as "the mere mouthpiece of their client" ([23]). They do not breach their duty to a client by choosing, contrary to instructions, to confine a hearing to the real issues and present the case as quickly and simply as is consistent with its robust advancement ([23], fn 5).

That duty extends to affidavits, including affidavits drafted by clients or witnesses. The Court accepted that busy practitioners may allow initial drafts by the deponent and that clients may insist on it to save cost ([25]–[26]).
But the lawyer must delete inadmissible, irrelevant or gratuitous content, and must refuse to file an affidavit of no relevance or probative value ([26]).
As a "benign example", the affidavits annexed 220 happy photographs of the children, none of which had any probative value. The Court said it is understandable that self-represented litigants might think such photographs have a forensic purpose, but there is "frankly no excuse for lawyers" putting them in ([27]).
The Court also noted less benign examples across the Court, with irrelevant, gratuitous or offensive affidavit material, and said that where a lawyer prepared or filed such material, the duties had not been met ([28]).

The cost of over-calling evidence

The Court said the process "should have been entirely unnecessary" and that the excluded affidavits "should never have been filed" ([94]). Consequences included unnecessary costs, delay in reaching trial, and a seven-day estimate that limited earlier listing dates and used days that could have gone to other families ([95]–[97]). The Judge accepted the practitioners were experienced and competent and said the case might serve as a reminder to the profession ([101]). No costs order is made in these reasons.

Conclusion

The Court shortened the trial by receiving, apart from the parties' own affidavits, only the affidavits of six professional witnesses (the Single Expert Witness, the family therapist, a paediatrician, a general practitioner and the two psychologists) and one lay witness for each parent. The affidavits of the other 16 proposed witnesses were not received. Orders to that effect were made on the first day of trial, 4 February 2026 ([91]–[93]).

This judgment does not decide the parenting dispute itself. It explains the evidence ruling only. It makes no findings on the contested allegations mentioned in passing ([60]). Its criticism is aimed at how the evidence was prepared and filed by the lawyers, not at the parents personally ([94], [101]).

🧠 Take-Home Lesson

Identify the real issues first. Do this before anyone drafts an affidavit. When the issues are narrow and the agreed matters are recorded, the evidence must fit the issues ([10], [3]–[4]).
Admissible does not mean relevant. Hearsay and opinion can come in to parenting cases, but lay opinions about a parent's character or personality seldom help the Court decide future care arrangements ([11]–[13]).
Count the witnesses against the issues, not against the other side. If the evidence is common ground, extra witnesses add cost and delay, not weight ([45], [95]–[97]).
Character references and happy photographs have no probative value. Do not annex hundreds of them ([27], [37], [39], [41]).
Lawyers cannot hide behind instructions. The duty to exercise forensic judgment covers affidavits drafted by a client or witness, and includes refusing to file one that has no relevance or probative value ([23]–[26]).
The Court will manage the evidence. In child-related proceedings the Court must actively direct and manage the case and may limit witnesses, evidence and cross-examination ([18]–[20]).
Expect an early test. Be ready to explain, affidavit by affidavit, why each witness is needed, as counsel were ordered to do here ([6], [8]).
Self-represented litigants and support workers: the Court recognises that unrepresented people may think photographs and glowing references help, but they carry no weight on their own. Focus your affidavit on the issues the Court has to decide ([27]).
Evidence from treating professionals is treated differently. The Court received it where it was clearly relevant to the issues in dispute, or where the professional's engagement with the parent was current ([69], [81], [86]–[90]).

"Admissibility does not equate to relevance, nor to probative value." ([12])

"The requirement to adhere to clear professional obligations is a complete answer to many of the demands made by clients." ([100])

This digest is general information only and is not legal advice. The judgment is published under pseudonyms and subject to the publication restrictions in Part XIVB of the Family Law Act 1975 (Cth).

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