If you apply for a financial order or a parenting order and are given a contested hearing (trial), you will need to present evidence. Both the Family Court of Australia and the Federal Circuit Court of Australia follow the Evidence Act 1995, but they each have their procedures governing trials and evidence.
Also, the Family Law Act 1975 contains some special rules concerning evidence in family law proceedings. Parties in the Family Court are also expected to follow chapter 15 of the Family Law Rules 2004 which governs the presentation of evidence.
The most important rule when you present evidence to a Family Law Court is that the evidence must be truthful. If you testify falsely or knowingly present false evidence, you can be prosecuted for a crime.
Evidence in family law proceedings is commonly given in the form of written affidavits. The affidavits must be prepared and submitted in a manner that is consistent with the rules or the court will not receive them as evidence. It is best to have a lawyer help you prepare affidavits.
Documents can be attached to affidavits if the person making the affidavit has knowledge of their authenticity. As a general rule, the contents of the affidavit must comply with other rule of evidence. For example, the contents must be based on the personal knowledge of the person making the affidavit, not on hearsay.
Individuals can be compelled to come to court to testify when they refuse to provide an affidavit. An adverse party can compel the person who made an affidavit to come to court to be cross-examined about the contents of the affidavit. Correct procedures must be followed to compel the attendance of a witness at trial.
As a general rule, courts prefer that children not testify as witnesses in a trial. To that end, if a child’s testimony is relevant to a proposed parenting order, the court will probably require the proposed testimony to be submitted in writing so that the court can determine whether the child needs to testify. In some cases, the court may be satisfied that an affidavit from the child should be accepted instead of testimony.
If the court does allow a child to testify in a family law proceeding, it may order that an appropriate support person be present to make the child feel comfortable. It may also direct that the child’s testimony be given by video conferencing so that the child does not need to appear in person.