Author

Alan Weiss

15th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.

Not all evidence that is relevant can be shown to the court

Ensure that you have a sound knowledge of the law of evidence and in particular a proper knowledge and understanding of the provisions of the Evidence Act 1995 (Cth) in relation to any proceedings in the Family Court, other than child-related proceedings. 

Not all evidence that is relevant can be shown to the court. The rules of evidence are complicated. Evidence that cannot be used in court is called 'inadmissible evidence'.

There are common types of inadmissible evidence:

  • Hearsay Evidence
  • Opinion Evidence
  • Character Evidence
  • Past Behaviour
  • Legally Privileged Information
     

Hearsay evidence 

Hearsay is something that you have heard from someone else. You cannot use hearsay evidence in court. So, for example, in your evidence you cannot talk about a conversation between your sister and ex-partner, which happened when you were not there. There are exceptions to this rule.

A conversation might be admitted to work out the time and place of an event or why a person acted in such a way. Get legal advice. If you try to use hearsay evidence, for example in a Division 12A case, the other party may challenge its use. To avoid this you can call the person who made the statement as a witness.
 

Opinion evidence 

Usually, witnesses can only give evidence about things they know as fact. So, a witness can give evidence of what they saw but not what they think about it. The exception to this is the evidence of an expert, who has qualifications or experience that they use to give an opinion. An example would include a psychologist or forensics expert.
 

Character evidence 

Usually, evidence used to harm a witness is not admissible. If a party uses evidence to show their good character, you may be allowed to use evidence to show otherwise.

Past behaviour

How a witness behaved in the past, if not related to the current case, is not usually admissible. However, you may use evidence that shows a pattern of behaviour leading to, or directly connected with your case.

Legally privileged information

Confidential information that you have given to or received from your lawyer, including negotiations to settle the case, are not admissible. Confidential information can be used:

  • When the parties agree to the evidence being used
  • Where most of the evidence has already been used
  • When the information was not meant to be confidential
  • Where the evidence contradicts other evidence given about attempts to settle the dispute
  • Where the case is to enforce an agreement made by the parties to settle the dispute.

Section 69ZT of the Family Law Act provides that in child-related proceedings provisions of the Evidence Act 1995 do not apply unless the court decides. 

Section 69ZT of the Family Law Act provides that the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying. It also provides that the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings

Note: You should apply the rules of evidence while writing your affidavit.
 

Facts you know about 

An affidavit is made up of a series of short, numbered statements. Each statement should follow on logically from the one before. Each statement should set out a fact relevant to the case. It is important to know the difference between a fact and an opinion as you can only use facts that are known to you, not what you think about something.

For example, you can give evidence about something if you saw it happen, but not if you just think something happened. This includes not putting in information told to you by someone else. 
 

A statement must be true

If you make a statement in an affidavit that you know is not true, you commit perjury. Perjury is a criminal offence. If you make an untrue statement, either knowing it is not true or without properly checking if it is true, you risk damaging your credibility before the court.

Credibility means your reputation for telling the truth and being trustworthy. Being considered not credible is bad for your case and can destroy your case in some instances.Identify the issues in dispute.

You must identify the issues in dispute before drafting your affidavit. Evidence deposed in your affidavit needs to be relevant and relate directly to the issues in dispute. A Judge may identify Issues for Determination (the matters in dispute) prior to making case management directions requiring the parties file affidavit materials. In this event, it is important that your evidence is limited to only those issues. 

For example, intimate details of purchase and sale of assets will probably have no relevance in child-related proceedings where the issue for determination is competing for residency applications. And it is unlikely that a detailed history of a 10-year marriage will not assist the court in determining whether a seven-year-old child should spend time overnight with his or her father.
 

Evidence must be relevant to the issues in dispute 

Keep your affidavit short and to the point. The affidavit should be about the issues in your case. If it is not, you risk annoying the judge. This may affect your credibility overall. You can be ordered to pay costs if the other party has to challenge irrelevant or offensive statements in your affidavit.

On the other hand, do not keep out relevant information – you may not get the opportunity to add it in later, and it may be important to your case. Also, leaving something out may damage your credibility if it affects the accuracy of your affidavit.
 

Keep in mind the orders sought 

When drafting the affidavit, keep in mind the order being sought and what must be established in evidence to support your case. You should bear in mind the terms of the Family Law Act and relevant case law. As a party is limited to one affidavit by that party (subject to Rule 9.07 of Family Law Rules) and oral evidence-in-chief will not be allowed without leave, it is crucial that all the elements of your case are addressed by the affidavit evidence.
 

Use documents to corroborate your evidence 

Whenever possible corroborate your evidence by reference to documents. For example, in a property matter attach correspondence from a lawyer or an actual contract to evidence the purchase price of real property, a passbook or bank statement to show source of funds to acquire real estate, passports to show dates of travel, terms of settlement when you are claiming direct financial contribution by reason of a common law verdict obtained in another court.

In a parenting matter attaching copies of text messages, letters or emails received from the other parent may be advanced your case. Attach copies of Child Support statements detailing payments to the CSA, etc.

In the Federal Circuit Court, Rule 15.28(1) provides that a document which is to be used in conjunction with an affidavit must be annexed to the affidavit. Where a document is referenced for attachment in your affidavit, you should write and highlight in bold text "A true copy of [the said document] is hereto attached and marked as Annexure [A, B, etc.]" or words to that effect. In the event that it is impractical to annexe the document due to either the nature of the document or its length, then the document may be an exhibit to the affidavit under Rule 15.28(2).

As in the Family Court, any annexure to an affidavit must be paginated and contain a statement signed by the person (usually a Justice of the Peace) before which the affidavit is made' which identifies the document as the particular annexure. Annexures should be paginated, and the pagination should continue, consecutively, until the last page of the last annexure (see Rule 15.28(4)).
 

Nullify potentially damaging evidence 

Present all relevant facts, including those that may be damaging to your case. It is unlikely that the other party will fail to include those damaging facts when presenting their evidence.

It is often better to include potentially damaging evidence in your affidavit and acknowledge inappropriate past actions or behaviour. It is preferable to use your affidavit as an opportunity to explain the adverse evidence and present evidence to address any concerns that arise from that adverse evidence.

For example, you may a history of past recreational drugs which is easily proven by the other party. Acknowledge your past use of drugs and in your affidavit to provide evidence of how you have addressed this issue by attending drug counselling and attach results of random test drugs.

For example, perhaps you have a problem managing your anger and an AVO or Family Violence Order is in effect. Acknowledge the problem, demonstrate contrition, describe what steps you have taken to address the issue and attached corroborating documentation certifying successful completion of an Anger Management Course or attendance upon a counsellor.

As a party to proceedings, you have obliged to disclose all relevant information to the Court. Withholding relevant information from the Court can undermine your credit (the credibility of your evidence).

No one is perfect. We all make mistakes. We do silly things. Judges and Magistrates want to see people - especially parents - assume personal responsibility for their actions and take reasonable steps to address problems and issues.
 

General rules for writing affidavits 

Bear in mind the general rules for drafting affidavits:

  • Divide the affidavit into numbered paragraphs;
  • Include only one distinct portion of the subject matter per paragraph;
  • Always language or write your account in the first person;
  • Always use your own knowledge, describe what you have witnessed first-hand;
  • Always use your own words;

Always set out conversations indirect speech. Specify who was present when conversations took place and where and when those conversations took place;

You may have difficulty in remembering precisely what was said. In those circumstances, you should depose to the conversation, as best as you can recollect and then you should add the words "or words to that effect".

An affidavit is not a pleading. In respect of some paragraphs, however, it is virtually impossible not to set out material as though the document was a pleading. How do you provide evidence proposing a change in parenting arrangements for the future? In such circumstances, all you can do is to say something to the effect of "I propose to enrol the children at the Blackacre School for the first term of 2005".

Do not use an affidavit as a medium to present arguments to the court. Do not include in the affidavit material or expressions to the effect of "I submit that this Court should dismiss the Application" or "This Court has no jurisdiction to grant this Application" or "I say and the fact is ...". Ensure that any alterations, interlineations or erasures are initialled and the person before whom the affidavit is sworn;

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