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How Important are Affidavits in Family Law

The importance of Affidavits in Family Law proceedings.

It cannot be stressed enough how important or crucial to the presentation of a strong case a good and well prepared affidavit is in family law proceedings.

An affidavit is a sworn or affirmed document which contains the primary evidence of which ones case is based.

Family Law proceedings is by definition a trial by affidavit. Careful consideration must be given to the drafting of an affidavit. This document is the most important document a litigant relies on.  It gives the party the opportunity to spell out or “paint a picture” of their story. In order to paint a proper, clear and persuasive picture consideration must be given to ensuring that relevant details are included.  Therefore, it is absolutely vital that affidavits be:-

  • well drafted;
  • in chronological order, with dates where possible;
  • understandable;
  • persuasive;
  • contain the evidence which can be verified in the witness box;
  • contain evidence in admissible form;

Equally vital is that an affidavit not contain opinions, needless repetition of facts or issues, personality flaws of their ex-spouse and other material completely irrelevant to the issues in the case. In addition, the use of exaggerations and distortions such as always, never etc unless they can be substantiated is not looked on favourably.  In light of this Rule 15.13 of the Family Law Rules (2004) provides that:

(1) The court may order material to be struck out of an affidavit if the material:

(a) is inadmissible, unnecessary, irrelevant, unreasonably long, scandalous or argumentative; or

(b) sets out the opinion of a person who is not qualified to give it.

(2) If the court orders material to be struck out of an affidavit, the party who filed the affidavit may be ordered to pay the costs thrown away of any other party because of the material struck out.

Any material that the party wishes to rely on as evidence should be annexed unless it is an expert report such as a psych report in which case the psychologist/psychiatrist should have their own affidavit and the report attached thereto. Examples of evidence that should be annexed are drug test reports, certificates of attendance at parenting courses, letters from counsellors, and for property matters, financial documents such as invoices, bank statements, superannuation statements, receipts   etc.

 

Prepared by Justine Bowman

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