application pursuant to s 32 of the Evidence on Commission Act 1995 (NSW)
where application relates to family law proceedings in overseas Court
orders made
Quick Take
1Family law proceedings (divorce) in a foreign court qualify as 'civil or commercial' proceedings for the purposes of Part 4 of the Evidence on Commission Act 1995 (NSW) and the Hague Evidence Convention, even though the boundary between family law and civil law has not been definitively settled by higher courts.
2Where some questions proposed in a letter of request might arguably relate to criminal conduct in Australia, the proceedings in the requesting court are not thereby converted into 'proceedings relating to the commission of an offence' within s 32(2), so the exclusion does not apply.
3Comity requires the Court to view letters of request benevolently and give effect to them to the fullest extent possible, leaving questions of admissibility and relevance to the requesting court in all but the clearest cases.
