Evidence in family court

Family law proceedings raise a particular set of evidentiary concerns, notably in connection with evidence in children’s cases. Evidence in family law proceedings before the Family Court of Australia is governed by both the Evidence Act 1995 (Cth) and the Family Law Act 1975 (Cth).

How you gather evidence to use in a Family Law Court depends upon the kind of evidence you need. The court requires parties to disclose certain information and to exchange certain documents.

If you need additional information, you can use the court procedures known as “discovery.” You can also bring witnesses to court to testify on your behalf.

Disclosure

Each party to a family court proceeding has a duty to make a full and frank disclosure to the court and to the other party of information that is relevant to the disputed issues. You can use that information as evidence.

In a financial case, each party must file a financial statement. The statement must disclose:

• Earnings
• All interests owned in property, including superannuation interests and trusts
• All financial resources
• All property disposed of within the 12 months preceding separation
• All debts and liabilities 

Document exchange

If you have applied for a financial order, you must exchange certain documents with your former partner at least two days before your first court date. Those documents include:

• Tax returns for the last 3 years
• A superannuation information form
• Financial statements of corporations, partnerships, and trusts in which the person has a significant ownership interest
• Business activity statements for the last 12 months concerning any business in which the person has a significant ownership interest

A market appraisal of the property you own (unless an agreement is reached as to its value)

If you have applied for a parenting order, you need to exchange documents that are relevant to your dispute. The child’s school records and medical records are examples of documents that might be relevant.

Discovery

In certain cases, it may be appropriate to serve written questions on the other party. Those questions must be answered in writing. No more than 20 questions are permitted. A lawyer can help you formulate appropriate questions.

Witnesses

You can obtain evidence from witnesses by bringing them to court to testify on your behalf. In a financial case, witnesses may include people who possess financial information about the other party, including trustees, employers, and accountants.

In a parenting case, children are not generally called as witnesses. Instead, the court may rely on a family report, if one was prepared, that may contain information obtained from interviews with the children.

Other witnesses in a parenting case may include:

• Teachers
• Relatives
• Police or other witnesses who observed evidence of violence
• Social workers or therapists
• Physicians

The court can issue a subpoena to compel the attendance of witnesses in court. A lawyer can advise you about the procedure for obtaining a subpoena.