Two devoted parents. Two healthy children. No allegation of violence or abuse. Yet the matter came to trial with 25 witness affidavits, 220 photographs and a seven-day listing. In Bailey and Petersen [2026] FCWA 50, O’Brien J concluded that the overwhelming majority of that material lacked probative value and should never have been filed. The decision is a sharp reminder that practitioners must exercise independent forensic judgment – not act as the mere mouthpiece of the client.
Case background and Court’s approach
The proceedings commenced in May 2020 and concerned parenting arrangements for the parties’ two children, born in 2017 and 2019.
At a Status Hearing in early 2026, both parties confirmed as common ground that among other matters, neither parent posed any risk to the children and that each was a competent and attentive carer. The core dispute was each party’s contention that the children’s emotional safety was at risk from the other parent’s negativity. It was, by any measure, a narrow field of contest.
Against that background, O’Brien J ordered counsel to justify at the commencement of trial why each affidavit, other than those of the parties, the Single Expert Witness and the family therapist, should be received. Limits were also imposed on cross-examination and submissions, with liberty to apply for extensions during trial.
Of the remaining affidavits, only eight were admitted: six professional witnesses and each party’s mother. The affidavits of 16 proposed witnesses were excluded. O’Brien J observed that the parties had collectively annexed no fewer than 220 “happy photographs” of the children, none of which carried any probative value.
O’Brien J concluded that, where both parties were represented by family lawyers, the exercise should have been unnecessary. The failure to exercise discipline caused unnecessary costs and delay, and the seven hearing days consumed could not be made available to other families awaiting resolution.
Principles restated
The Court affirmed the foundational principle that evidence at trial must be limited to facts that are relevant, admissible and of probative value, consistent with rule 239 of the Family Court Rules 2021 (WA).
Three further propositions were emphasised:
- There is a critical distinction between inadmissible lay opinion and qualified expert opinion; the fact that hearsay and opinion evidence may be admissible in parenting proceedings under section 102NL of the Family Law Act 1975 (Cth) (“the Act”) does not mean it is relevant or probative.
- Parenting orders are a prospective and predictive exercise; the Court’s task is rarely informed by “cradle to grave” affidavits of the parties.
- The Court must actively direct, control and manage the conduct of child-related proceedings under section 102NE of the Act.
The duties of legal practitioners
Perhaps the most significant passage for the profession concerns the obligations of lawyers, that sits at the heart of the adversarial system. O’Brien J stated unequivocally that lawyers must not act as the mere mouthpiece of their client, and are required to exercise independent forensic judgment to confine the hearing to the real issues and present the case as quickly and simply as is consistent with its robust advancement.
That duty extends to deleting inadmissible, irrelevant or gratuitous content from affidavits, and to refusing to file an affidavit of no relevance or probative value. The Court acknowledged the common practice of clients preparing initial drafts to reduce costs, but held that the lawyer retains an overriding duty to apply that professional discipline to the content before it is placed before the Court.
O’Brien J offered the profession practical guidance: adherence to clear professional obligations is itself a complete answer to the demands of difficult clients, and will more often alleviate the pressure perceived by a practitioner than exacerbate it.
Implications for practice
The Court acknowledged this is “regrettably not an isolated” instance, and said the case should serve as a reminder to the broader profession of the need for attentiveness to professional obligations at all times.
Bailey and Petersen reinforces that forensic judgment is not merely a professional aspiration but an enforceable duty – one the Court will not hesitate to police.
For practitioners the message is plain: review file-preparation practices, interrogate the probative value of every affidavit, and resist the uncritical adoption of client-drafted material — before the Court does so for you.
** For the blissfully unaware (and the writer includes herself in that category until approximately halfway through drafting this article): “cradle to grave” originates as a term for full life-cycle assessment — tracking a product from raw material extraction (“cradle”) to final disposal (“grave”). In family law, it describes a narrative that attempts to recount every event in a person’s life from birth to the present day — an approach that is almost never as helpful as the narrator believes it to be.
