Are the 'Recommendations' of Family Report Writers Admissible Evidence?

The fundamental rule of evidence is that it must be relevant. It is said that all other rules of evidence flow from this fundamental rule.[1] The purpose of the fundamental rule is to only allow "evidence" which tends to prove or disprove a fact in issue.[2] Anything else is a hindrance, or even detrimental, to the deliberation process the Court is required to undertake.

One principal which flows from the fundamental rule is that "evidence" cannot be received which "swears to the ultimate issue." There is some doubt about the certainty of this principal as a rule of evidence,[3] however most recently Callinan J held in Naxakis v. Western General Hospital:[4]

"At this point I would observe that there is an increasing tendency for counsel to seek to elicit (and their opponents to acquiesce in this endeavour) evidence on the ultimate legal issue. In the absence of a statutory basis for the reception of such evidence, the better view I think is that a court should generally uphold an objection to it." Section 69ZT of the Family Law Act 1975 states, relevantly, that the rules of evidence do not apply to "child-related proceedings." The section flows from principles for conducting child-related proceedings listed at section 69ZN of the Act. One of those principles is to ensure proceedings are conducted without undue delay and with as little formality and legal technicality and form as possible. The correlation is that prima facie the rules of evidence produce formality and legal technicality not conducive to these proceedings. Nevertheless, within section 69ZT, the Court is still empowered to apply the rules of evidence should the circumstances of the case require it sub-section 69ZT(3) refers. Whilst that sub-section lists matters the Court should consider in the application of the rules of evidence, it is clear that should a rule of evidence enhance the likelihood of an expeditious resolution, or remove...