Evidence is material presented to a court to prove or disprove a fact. Evidence includes verbal or written statements of witnesses, documents and other items or objects.

The Evidence Act 2008 (Vic) is the principal Act introducing uniform evidence law into Victoria and applies to all proceedings (both civil and criminal) in all Victorian courts, however it does not affect the operation of the provisions of any other Act. The Children, Youth and Families Act provides that the Family Division of the Children’s Court may inform itself on a matter in such a manner as it thinks fit, despite any rules of evidence to the contrary (section 215(1)(b)).

In circumstances where the Evidence Act applies, evidence will be admitted if it is relevant to the case. However, relevant evidence may be excluded because:

it is hearsay, the person giving the evidence did not see or hear it directly
it is opinion evidence (unless an exception to this rule applies, for example if the evidence is relevant and given by a person with specialised knowledge, and that knowledge is based on the person’s training, study or experience and the opinion is wholly or substantially based on that specialised knowledge)
evidence of judgments and convictions
various categories of privilege, client legal privilege, privilege in respect of self-incrimination.

Evidence that is not excluded by a rule of admissibility may still be excluded by one of the discretionary or mandatory exclusions, for example if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.

The standard of proof to which a fact must be proved is:

in civil proceedings, on the balance of probabilities (more likely than not); and
in criminal proceedings, beyond reasonable doubt.

The standard of proof of any fact in an application under the Children, Youth and Families Act 2005 (Vic) (CYFA) in the Family Division of the Children’s Court is the balance of probabilities (s. 215A of the CYFA).

However, for the purposes of s 162(1)(c) to (f) of the CYFA, in determining the likelihood of a future state of affairs or likelihood of future harm, the standard that the Court may have regard to is set out in s 162(3):

(a) the Court may find that a future state of affairs is likely even if the Court is not satisfied that the future state of affairs is more likely than not to happen;

(b) the Court may find that a future state of affairs is unlikely even if the Court is not satisfied that the future state of affairs is more unlikely than not to happen.

Best interests case practice model