An Affidavit is a written account of matters undertaken, or observed by the person who deposes or makes the Affidavit. It generally forms the primary evidence or basis for Orders sought by a party to family law litigation. For this reason, it is crucial to ensure that the content is relevant, accurate and easy to understand. Opinion, summation and hearsay (or matters not directly observed) are generally prohibited in an Affidavit and the Court will generally disregard any evidence of this nature.
Relevance is a very important aspect of an Affidavit. When a Judge is faced with a busy Court list, it is not ideal for a client to weigh their evidence down with trivial details that are plainly not relevant to the issues in dispute.
In determining what information is appropriate, it is often wise to consider whether the material they are including clarifies something that is in dispute, whether it has a purpose and whether it is relevant and directly related to the issue in question.
In cases where the evidence contained in an Affidavit is inadmissible, irrelevant, unnecessary, argumentative, scandalous or opinion evidence provided by a non-expert, the Court may order that the said content be struck out. Failing to comply with the Family Law Rules or the Federal Circuit Court Rules in relation to admissible evidence can not only result in a client’s evidence being given little weight, but it also can go to the issue of costs.
The structure of an Affidavit should be logical and structured. If disorganised, important information can be missed and this may prejudice a case. Discretion must also be exercised in annexing documentation to an Affidavit. A document can be relevant, disclosed formally and relied upon in proceedings, but won’t necessarily be annexed to an Affidavit. Each Court generally has a preference, hence the importance of working with a practitioner that has an exceptional understanding of how best to adduce evidence before each and every different Judge.
Whilst often tempting to adduce evidence from those who support you, bear in mind that the Court does consider Affidavits of this nature to be of a `cheerleader’ variety and they are generally given limited weight. Obviously if a witness has something meaningful to report in relation to something observed, then definitely rely upon them as a witness, but be careful to avoid unnecessary evidence. The Court’s resources are limited, and an informed discretion around the accumulation of evidence is valuable.