Family Law evidence – a critical part of your case
When you are dealing with family law, evidence, is essential to prove your case – which has to be proven ‘on the balance of probabilities’.
‘He said she said’ is never a good approach to evidence in family law.
In family law matters, your evidence is given in an affidavit. You will have to either swear or affirm that affidavit.
You are also required to disclose all documents in your possession, power or control that are required by the Rules of the Court, or are relevant to matters in issue. You cannot refuse to disclose a document simply because it helps the other party, not you.
You cannot hide a document to ‘surprise’ the other party at a final hearing. If you don’t disclose it, you cannot rely on it.
It is very important that all relevant and required documents are disclosed within the timeframes required by the courts (and if your matter is not yet in court, before an application is filed). Set out below is a timeline of what you are required to disclose and when.
Documents required before filing an Application (or if an application has already been filed, within 14 days after the first Court date)
- copies of your 3 most recent taxation returns (if you are behind in your tax, it is important to now bring it up to date)
- copies of your 3 most recent taxation notices of assessment
- copies of your 3 most recent wage/salary certificates
- if you are a member of a superannuation plan:
- if not already filed or exchanged — the completed superannuation information form for any superannuation interest; and
- for a self-managed superannuation fund — the trust deed and copies of the 3 most recent financial statements for the fund;
- if you have an Australian Business Number, copies of the last 4 business activity statements lodged
- if there is a partnership, trust or company (except a public company) in which you have an interest:
- copies of the 3 most recent financial statements
- the last 4 business activity statements lodged by the partnership, trust or company
- the most recent annual return, listing directors and shareholders
- copy of the corporation’s Memorandum & Articles of Association
- copy of Trust Deed
- copy of Partnership Agreement.
- all documents containing evidence about:
- the financial matters mentioned in your Financial Statement
- the financial contributions made at the commencement of cohabitation
- any inheritances, gifts or compensation payments received during cohabitation
- any purchase or disposal of property in the 12 months prior to and since separation
- any increase or reduction of liabilities since separation
- the value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value.
Documents required 14 days prior to a Conciliation Conference (and usually a private Mediation)
- list of all bank accounts, details of account numbers, passbooks and bank statements for the past 12 months
- details of all credit union, building society or other such deposits books or statements for the past 12 months
- details or records of any investments including stocks and shares
- any social security pension or payment details
- records or details of any overtime worked in the past 12 months
- records or details of any long service leave accrued
- valuations or appraisals of real estate
- valuations or appraisals of goods (such as cars, computer equipment, television)
- records or details of any life or disability insurance including surrender values
- records or details of any of the above that relate to your children
- medical or psychiatric reports (if you have a health condition impacting on your earning capacity)
- medical certificates (if you have a health condition impacting on your earning capacity)
- Any documents above that come into your possession as your matter progresses (eg: bank statements, tax returns).
- If there are any documents listed that you cannot locate (for example, financial statements for a business, trust deeds or tax returns) please let us know urgently so we can take steps to obtain copies of the documents.
It is important you disclose all documents which are relevant to your matter – not just the documents we have listed above. They are the minimum required by the Court but if other documents are relevant, we need those also. If you have a document which proves your case, we need you to give us that document. . If you don’t disclose documents when required, the court will not allow you to rely on them to prove your case and you may be guilty of contempt of court.
Below is a case study to highlight the type of documents you would need to disclose which are not listed above:
George lived on a rural property which had been in his family for many generations. Before he and Jane married in 2000, his Father gifted him a portion of the property and an interest in the business.
Jane had a house she had bought in 1999. She had equity of about $100,000 in the property.
In 2005, George’s father passed away. George had to buy out his brother and sister, who were entitled to a share of the rural property under their father’s will. Jane’s house was used as security to borrow the money to pay out the brother and sister.
Documents which would be relevant for George to disclose in this scenario include:
- Evidence of the value of George’s share of the rural property at the date of marriage (eg: documents submitted to banks for loans etc)
- Evidence of the value of Jane’s house at the date of marriage (eg: evidence of similar local sales, the purchase documents and settlement statement)
- Evidence of Jane’s equity in her house at the date of marriage (eg: bank statements for her mortgage)
- Evidence of the value of Jane’s house and the rural property at the date of buying out the brother and sister
If you cannot find documents to prove matters that are relevant (such as initial contributions) you should tell your lawyer as soon as possible so we can discuss how to obtain the necessary documents to prove your case.
If you are unsure if a document should be disclosed, the best thing to do is to ask your lawyer.
Finally, it is important that you do not mark any documents before you provide them to your lawyer. If you wish to make notes, make an additional copy and make notes on that copy.
This is a matter of personal choice.
Swearing an oath requires you to place your hand on a Christian Bible and
“Swear by Almighty God that the evidence I shall give will be the truth, the whole truth and nothing but the truth, so help me God.”
An affirmation omits the Bible and the references to God.
Regardless of which one you choose, if you tell a lie, that is perjury.
It also does nothing to assist your credibility before the Judge and can seriously harm your case.