Examination of person making affidavit
91 Examination of person making affidavit
If an affidavit is to be relied on in a proceeding, the court may order the person who made the affidavit to attend a hearing (an examination hearing) at which the person is to be examined or cross-examined before the court about the affidavit.
Notes—
1 The child the subject of a CAO proceeding or child protection proceeding, or a child in an adoption proceeding, may be called to give evidence or cross-examined only with the leave of the court under the Child Protection Act, section 112 or the Adoption Act, section 238.
2 See the Births, Deaths and Marriages Registration Act 2023, section 75 for when a child in an acknowledgement of sex proceeding may be called to give evidence or cross-examined.
Subrule (3) applies if an affidavit to be relied on in an acknowledgement of sex proceeding started by an application made under the Births, Deaths and Marriages Registration Act 2023, section 45 or 56 by a child is an affidavit of the child.
In deciding whether to make an order under subrule (1), the court must have regard to the following matters—
the child’s age;
whether the child is legally represented;
the nature of the evidence to be given by the child;
whether the child’s evidence may be given in another way.
Subrule (5) applies if an affidavit to be relied on in a proceeding is served on a party to a proceeding more than 3 business days before an appearance in the proceeding and the party wishes the person who made the affidavit to attend an examination hearing about the affidavit.
The party who wishes the person to attend the examination hearing must serve a notice to that effect on the party to the proceeding on whose behalf the affidavit is filed in the court at least 1 business day before the date the person is required to attend the hearing.
If the person who made the affidavit does not attend the examination hearing in compliance with the notice, the court may refuse to receive the affidavit into evidence.
However, the court may—
dispense with the requirement of a person who made an affidavit to attend an examination hearing about the affidavit; and
direct that an affidavit be used without the person who made the affidavit having attended an examination hearing about the affidavit.
Unless the court orders otherwise, a party to a proceeding who serves a notice under subrule (5) for the person who made an affidavit to attend an examination hearing about the affidavit is not liable to pay the expenses of the attendance.
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