Final hearings in the Family Courts are often called ‘paper trials’ – they proceed on written statements of evidence called Affidavits, which are made (sworn or affirmed by a spouse as being true) and filed in advance of any hearing.


The oral evidence from litigants in family law cases is therefore usually limited to cross-examination (where an adversary gets the chance to ask questions about what a spouse has set out in their written Affidavit), and re-examination (where a spouse is asked questions about a new issue, not already addressed in their written evidence, and which has arisen from their cross-examination).


In this way, family law trials are often quite unlike what parties imagined they would be, that preconception often being based on what is seen in TV programs like ‘Suits’ and ‘LA Law’.


This means that a great deal of time and attention is given by family lawyers to assembling a client’s written evidence, called an ‘Affidavit of Evidence in Chief’.


That is a process which usually begins sitting with a client and taking their ‘story’ from them – their own observations and experiences, in their own words.


Lawyers later extract the parts of that story which are connected to issues at large in the case, and carefully record them in the client’s Affidavit.  For example, if a loan from parents when a family home was purchased is a contentious issue in the case, a family lawyer may focus heavily on, and record in great detail in the Affidavit, the client’s version of events as to what was said and done about the loan advance at that time.


When the client reads that Affidavit in its first draft, they often remark that a lot of content is missing.


For example, the 20 good reasons they formulated as to why their former spouse is a cad, and the list of the shenanigans they have been up to after separation, have not been put in the Affidavit.  And why it is that they think they will make a better parent than their former spouse has not made it onto the page at all.


They are often confused as to why that is so, and disappointed that what they consider to be important to their case is so noticeably absent from their most important document, their Affidavit.


They often remark that they want the Judge to know what an immoral person their spouse was, what a bad parent they have been, or to shine a spotlight on their behaviour since separation.  They want to know why it is that what they have said on these subjects is not in their Affidavit.


The short answer is that such information is often not capable of being admitted into evidence because:


  1. It is irrelevant; and/or


2.  It is not evidence – it is not an account of facts, and is in fact something else, such as an opinion.


These qualities may mean that, if the evidence is put into the Affidavit, objection may be taken to that at the trial, and the evidence may be ruled inadmissible, and struck out of the Affidavit by the Judge.


As to relevance, Judges are only human, and they cannot be expected to read every fact about a marriage or relationship.  They must be given only that which is relevant to the issues which require determination.   A family lawyer’s job is to distil all of the information given to them in this way.


To illustrate, in a 40-year marriage, where the pool of property has been built up without any external factor such as an inheritance, the Judge will likely not need a detailed recount of history, starting in the 1970s when the parties were young people.  A family lawyer may therefore omit that chunk of the client’s ‘story’, and instead focus on contentious points in the case – such as whether there is a differential in the needs of one party in comparison to the other due to age, health or dramatically different income earning capacities.


Though a client may be distressed at 4 decades worth of ‘history’ being omitted from their Affidavit, when they understand that the greater part of that history is peripheral to the task which a Judge faces, they can usually better understand that decision.


Accordingly, though you might think it important that the Judge read your account of your spouse’s invariably poor behaviour at almost every family event ever held, your lawyer may recommend against including that information in your Affidavit, because it is unconnected with any of the legal questions that the Judge must decide (such as a just and equitable division of property), and will therefore not be permitted to be admitted into evidence.


Otherwise, it is important to remember that Judges make decisions based on facts, and those facts are usually captured within:-


  1. A spouse’s direct observations and experiences – what they heard, saw, felt, touched and tasted (or the direct evidence of a third-party witness who can give evidence of those observations and experiences); and


  1. Documents (bank statements, photographs, letters etc) which independently prove those facts.


Though your opinions may be validly held, they are not facts.


Your family lawyer will instead help you drill down to the layers of facts which underpin your opinion – why it is that you hold the opinion you do.


For example, lawyers often encounter hyperbolic statements like “Jack was a dreadful husband – he could would not work if his life depended on it, and spent his days as a couch potato”.  Such a statement, on its own, cannot help a Judge.  It is an opinion about the extent of Jack’s contributions to the marriage, and is objectionable.


What is helpful is to recite that Jack did not undertake any paid employment during the marriage; that Jack had no health condition or disability during the marriage; that Jack worked approximately 8 hours per day in his man cave curating his collection of Star Wars Lego; and that Jack has been asked, on X date, to get a job so that his income could help with defraying household bills, and that Jack had said he could not do that in case he missed an episode of ‘Ready Steady Cook’.


Those facts, compared to the detailed work history of, and income earned by, the maker of that statement, will better support the submission that Jack’s contribution during the marriage should be assessed as having been lesser.


It is accordingly all about getting the facts which form the basis on which an opinion is held into evidence, as it is only that level of detail which can be of assistance to a Judge in deciding your case outcome.


Your family lawyer will also help you identify whether the facts for which you contend can be independently proven by any document which can be admitted into evidence.


In short, therefore, you can say what you think about your spouse in Court – you just have to limit it to that which is relevant, and take care to stick to the facts.


Dan Bottrell


Instagram:  @bottrelldan

Facebook:  @DanBottrellLawyer

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