evidence is usually presented through written statements in the form of affidavits
the court will only consider evidence in a family law proceeding if the evidence is relevant and presented in a proper format.
The rules of evidence in family court proceedings depend on the kind of evidence that a party offers. Different kinds of evidence include: testimony (oral statements made in court or written statements in the form of an affidavit), exhibits (physical objects), documentary material (writings on paper such as an invoice, contract, will or any media by which information can be preserved such as photographs, tape recordings, films, printed emails) or demonstrative evidence (e.g. diagrams, maps, graphs).
In family court proceedings, evidence is usually presented through written statements in the form of affidavits, unless otherwise ordered by the Court. These must be sworn, filed and served on the parties before the trial, on dates determined during the pre-hearing conference.
A family court proceeding deals with family matters. Factual information in the affidavit must be relevant to the disputed issue. When the dispute involves financial issues, affidavits will describe property ownership and value, income and savings, household contributions to the family, and similar matters. When the dispute involves children, information regarding the following topics is often presented:
- The applicant's personality and background.
- Their educational attainment and occupation.
- Their physical and mental health.
- Their proposals for where the child will live and spend time.
- Their proposed arrangements for the child's care and education.
- Their proposed arrangements relative to relevant moral issues, religious matters and cultural background issues (particularly where the child is of Aboriginal or Torres Strait Islander descent).
Their evidence regarding any allegations of family violence.
Details of any subsequent marriage or de facto relationship in which they have been involved which could be relevant in the proceedings, e.g. details of any re-marriage and step children.
Issues relating to the children's stability and the status quo. If it is to be changed, they may provide why this would be in the child's best interests.
Affidavits are limited to facts that are personally known to the person making the affidavit. Affidavits may not include speculation or expressions of opinions, unless expressed by experts. They should also not contain hearsay reports or evidence taken from secondhand reports, the media or textbooks. Commentaries on issues by the parties should not be included in the affidavits.
Family Consultant. The court will direct a family consultant to make a report. Typically, the consultant will interview each parent and child who is of appropriate age and maturity and observe parent-child interactions. This report will be given to all parties and will be considered with the rest of the evidence as an independent assessment of the situation.
Psychiatrists and psychologists. Subjecting children to psychiatric or psychological assessments are limited to appropriate cases only and unless ordered by the court, these assessments may be refused admission as evidence unless all parties gave written consent. If a party threatens to obtain a psychological/psychiatric assessment, it is possible to obtain an injunction to prevent it.
Expert witnesses. Reports from experts should conform to the following rules:
- The expert must be instructed in writing and a full disclosure of his or her obligations must be made.
- An expert should be retained only if the expert’s advice is necessary to resolve an issue.
- A report from a single expert may be obtained, provided the expert is instructed by both parties. If separate experts are sought by different parties, reports must be exchanged.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.