evidence in chief - family law proceedings
Testimony and evidence are presented in an affidavit that is why it is called a party’s evidence in chief. Affidavits are required when you are asking for interim orders, filing a response or as directed by the Family Court.
With the Federal Circuit Court, the applicant or respondent has to file an affidavit for both interim and final orders and whenever ordered by the Court. Since an affidavit is an evidence in chief, it must follow the prescribed form otherwise it will be inadmissible.
It follows that all documents attached to the affidavit as annexure will form part of the evidence in chief of the applicant and respondent. The documents must be correctly identified in the affidavit and correctly marked by number or letter. The document that is attached as an annexure must contain a statement that it is the one being referred to in the affidavit.
The Family Court and Federal Circuit Court have blank affidavit forms for applicants and respondents. An applicant or respondent can also make his own affidavit, but this might prove to be a complicated process to a layman, so it is always best to hire a solicitor for this endeavour.
An affidavit will be submitted to the Court and served upon the other party. This allows the Court and the other party to be prepared for the upcoming hearing or trial of the case. Thus, affidavits speed up hearings and facilitate faster resolution of cases.
An affidavit must only state relevant facts and leaves out matters that have no bearing to the case. There is no room for opinions or views in an affidavit except if the one testifying is an expert witness like a psychiatrist or licensed valuer.
The affiant must only testify on matters that are within his personal knowledge, consistent with the rule against hearsay evidence. If the applicant or respondent wishes to include hearsay evidence in his affidavit, he must consult a solicitor about the admissibility of this.
An affidavit must be subscribed by a competent person who is authorized to administer oaths. The subscribing officer will attest that the affiant appeared before him and manifested that the execution of his affidavit is his true act and deed. Section 98AB of the Family Law Act 1975 provides who may swear an affidavit for purposes of proceedings in the Family Court.
There are cases when an applicant or respondent would like to present a child as their witness. Section 100B of Family Law Act 1975 pertains to a child swearing affidavits and when a child is being presented as a witness. A child must not swear an affidavit unless so allowed by the Court through an order.
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.