We propose changing the title of the bill to Evidence (Giving Family Violence Evidence in Family Court Proceedings) Amendment Bill. This would more clearly describe what the bill seeks to do.

We recommend inserting definitions of “Family Court proceeding” and “family violence evidence” into section 4(1) of the Evidence Act. They would help to describe what these terms mean in relation to sections 106BA to 106BC.

The definition of “family violence evidence” would make it clear that the term means all oral evidence given by a witness in a Family Court proceeding, including:

• evidence in chief

• evidence given in cross-examination

• evidence in re-examination given about matters arising out of evidence given in cross-examination.

We note that the bill as introduced would allow any party or witness in a Family Court proceeding to give evidence of family violence in 1 or more ways. We recognise that this might allow witnesses who are not themselves victims of family violence to give their evidence in an alternative way. We are concerned that this provision could allow a person accused of family violence to use the entitlement to give their version of the allegations as evidence. Therefore, we recommend specifying that “family violence evidence” means evidence of family violence that the witness experienced as a person against whom the family violence was inflicted.

Our proposed definition would also make clear that family violence evidence excludes a Police video record of an interview with a witness that is to be offered by the prosecution as the witness’s evidence in chief in a criminal proceeding and that has been ordered to be accessible or disclosed for a Family Court proceeding. The definition would also specify that family violence evidence does not mean the wishes or views of a child or young person ascertained by the court or Judge.

As consequential amendments, we recommend inserting clauses 11 and 12, which would amend rule 54 and rule 299 of the Family Court Rules to align with the definition of “family violence evidence”.

In the bill as introduced, new section 106BB(1)(a)(i) would allow a party or witness to give evidence by a video record made before the hearing. We note that this new provision would require substantial investment in video recording capability in all Family Court rooms and could affect court timeliness given current delays in the system. Therefore, we recommend removing proposed section 106BB(1)(a)(i) and retaining the entitlement to give evidence in the following ways:

• while in the courtroom but unable to see 1 or more persons to whom the evidence relates

• from an appropriate place outside the courtroom, either in New Zealand or elsewhere.

As a consequential change, we also recommend removing proposed section 106BB(3)(b) as introduced.

Proposed section 106BC applies where a party or witness gives notice that they intend to give some or all of their evidence in an alternative way. It provides that any other party may apply to a Judge for a direction that all or part of the evidence be given in the ordinary way, or in a different alternative way. When considering whether to give a direction, the Judge must consider certain matters, including whether the interests of justice require a departure from the presumption for a witness to give evidence in an alternative way.

We recognise that allowing such an application for a judicial direction is important for ensuring procedural fairness. However, we note that, under the bill as introduced, judicial discretion is limited: a Judge cannot give a direction unless another party makes an application.

We consider that allowing judicial discretion is essential to ensure the proceedings are fair. It would also be an important safeguard against misuse of the provision, for example to delay proceedings. Therefore, we recommend amending proposed section 106BC(2) to allow the Judge, on their own initiative, to make a direction that the witness give their evidence in the ordinary way or a different alternative way.

We note that in Family Court proceedings, primary evidence is generally given by affidavit, not orally in court. This is a way of giving evidence that is already protective of victims and witnesses. We consider that the bill as introduced does not make it clear that the provisions are not intended to displace the use of affidavit evidence. Therefore, we recommend inserting clause 10 to amend Rule 48 of the Family Court Rules 2002. This would make it clear that the general rule is that evidence in support of a party’s case must be given by affidavit. The exception to this is a judicial direction that relevant evidence be given orally.

Clause 5 of the bill as introduced would make a consequential amendment to section 12 of the Sexual Violence Legislation Act 2021. That section replaced section 102 of the Evidence Act on 21 December 2022. With the replacement section 102 now in force in the Evidence Act, the consequential amendment needs to be made directly to section 102 in the Evidence Act (and not via section 12 of the Sexual Violence Legislation Act 2021, which is now spent). This would be done in new clause 5 of the bill.