When de facto relationships or marriages end, the best outcome for the parties and any children of the relationship is to reach agreement on property and parenting matters. However, if an agreed position cannot be reached, either party can commence proceedings in the Family Court to seek the assistance of Judicial Officers to resolve the dispute noting that for children’s matters, unless an exemption applies, the party making the application will have to have attempted mediation with a Family Dispute Resolution Practitioner. During the course of Family Court proceedings, both parties will need to put evidence supporting their position to the Court. This article sets out a brief summary of how evidence is brought before the Court in family law matters.
Affidavit evidence
Evidence in the Family Court is most usually provided by parties in writing, by way of sworn affidavits. The deponent sets out what they consider to be the relevant facts that the Court and the other party needs to know, with the document written in the first person, from their own perspective, and in their own voice.
In parenting matters, when an application is filed with the Court in the first instance, the affidavits of the parties are required to be in a prescribed format, setting out answers to specific questions about the care arrangements for the children, any risk factors that are present, and the disputed issues between the parties. Parties are not allowed to attach anything to Case Information Affidavits, but if there is a risk of abuse to a child, completion of a separate form is required to provide the Court with the information about that risk.
In property matters, the parties complete general affidavits in support of their application or response. As there isn’t the specified format of the Case Information Affidavit, it is recommended that the affidavit is broken up into sections by use of headings, and follows a chronological order as much as possible. General affidavits can have attachments, but this is usually limited to a maximum of five, and the affidavits themselves are usually limited to 10 pages of content. This is to ensure that Judicial Officers have sufficient time to read the materials filed with the Court.
Adult witnesses
If parties wish to bring evidence of other adults to the Court’s attention, their witnesses must also swear affidavits. Witness affidavits are usually shorter than the affidavits that the parties themselves will file, often limited to five pages of content, and again, fewer attachments are generally permitted. This is to ensure that the evidence that the Court is required to consider is relevant and succinct. This evidence cannot be filed with the initial application, but may be relied upon at later stages of the proceedings.
Children’s evidence
It is recognised that the direct involvement of children in Family Court proceedings is unlikely to be in the best interests of the children. Therefore, in the first instance, evidence in Family Court proceedings is most usually that of spouse parties to the proceedings, who are themselves the parents and caregivers of the children of their relationship. To shield children from the distress of direct involvement in the proceedings, the rules of hearsay are relaxed in the Family Court jurisdiction in relation to children’s matters, to allow parents to bring before the Court the expressed wishes of children.
Court proceedings also allow for the children’s wishes to be directly canvassed by a Court-appointed Family Consultant, who can convene a child inclusive conference. If an Independent Children’s Lawyer is appointed to the matter, they are required to meet with the children in person, or provide the Court with an explanation as to why they have not met with the children. If the Court considers expert evidence is required, it may appoint a Single Expert Witness to prepare a family report, who would usually be a psychologist, social worker or psychiatrist, and this professional will also meet with the children.
Standard of proof
When the evidence of parties, witnesses or Court-appointed experts diverges, the Court is required to weigh the evidence to determine the most likely facts of the matter.
The standard of proof in Family Court proceedings is usually that a finding of fact is made on the balance of probabilities, which means the Judicial Officer must determine the most likely actualities based on the evidence presented. Contemporaneous records, being materials created at the time of the events described, will usually be of more weight than documents or records that are created at a later moment in time. Parties in Family Court proceedings should therefore maintain their records in an orderly and time-recorded way, to ensure that they can put the best possible evidence before the Court if required.
When dealing with children’s matters, it is recommended to keep a diary with relevant events, and interactions recorded on the day, or as soon as possible thereafter that it occurs.
Lynn & Brown Lawyers encourage anyone involved in a family law dispute to get in touch with one of our experienced family lawyers. You can contact us through our website www.lynnandbrown.com.au or by calling 08 9375 3411.
About the Author: This article is authored by Alison Churchill. Alison is a family lawyer specialising in parenting and property matters, and she also appears in the Magistrates Court on restraining order matters. Alison completed her Bachelor of Laws in 2022 and was admitted to practice in August 2023.
