Family Law
Family & Relationship Law 23 August 2023

Unlocking the power of evidence in Family Law cases

What is evidence in family law matters? 

Evidence is the information given to a court which is both relevant and admissible that allows the court to decide the issue in dispute. It is the information you give in support of your case.    

Evidence takes two (2) forms: witness statements and documents.  

In family law matters, witnesses give their statements (evidence) to the Federal Circuit and Family Court of Australia (the Court) by way of an Affidavit – a sworn statement of firsthand information that the witness has seen, heard, said, felt, touched and tasted.  

Documents are evidence that corroborate a witness’ statement. All parties to a family law matter are under a duty to disclose all documents and information in their power, possession or control that are relevant to the issues in dispute.  Documents include audio/audio-visual recordings.  

At a Final Hearing (or Trial) parties and witnesses are then cross-examined so the evidence is tested and the witness’ credibility of their Affidavit is assessed. Documents are also tendered as evidence through witnesses during examination (provided the documents were disclosed prior).  

Evidence plays an important role in building and framing your case in family law matters so legal advice is important to know what evidence is needed, relevant and can be used in support of your case.  

What is relevant evidence? 

Section 55 of the Evidence Act 1995 (Cth) (EA) sets out the test of relevance. In civil matters (like family law) evidence is relevant if (and only if) the evidence could rationally affect (directly or indirectly) the assessment of whether a fact is more likely to be true or not, if it was accepted by the Court.  

In parenting matters, relevant documentary evidence includes (but is not limited to): 

  1. Criminal records of a party; 
  2. Documents filed in Intervention Order proceedings concerning a party; 
  3. Medical reports about a child or party; and 
  4. School reports.  

In financial matters, relevant documentary evidence includes (but is not limited to): 

  1. Bank, credit, loan, share statements; 
  2. Payslips; 
  3. Tax returns and notices of assessment; 
  4. Superannuation statements; and 
  5. Business, company, trust or partnership financial documents. 

What evidence is admissible? 

Section 56 of the EA states that relevant evidence is admissible unless otherwise set out in that Act.  

Inadmissible evidence includes: 

1. Hearsay evidence 

Hearsay evidence is a statement that you heard from someone else. For example, you cannot give evidence about a conversation between your brother and ex-partner if you were not present at the conversation and did not hear it yourself.  

Legal advice is needed to work out if there are exceptions to this rule.  

2. Conclusions 

Conclusion evidence is where a statement is made about a fact without showing the basis for the fact.  

For example, “I made greater contributions than my former husband.” You need to show:  

  1. how you made greater contributions (for example, you received an inheritance); 
  2. when you made the contribution (during the relationship/towards the end of the relationship/month and year); and  
  3. what is the contribution (cash or property and estimated value).  

3. Speculation 

Speculation is guessing the reasons another person does what they do, what they are thinking or what might happen in the future. You can only give evidence of what you have seen, heard, said, tasted, touched and felt.  

4. Opinions that the witness is not qualified to give 

Section 76 of the EA makes opinion evidence inadmissible. Whilst a witness may give evidence of what they saw, they ought not give evidence in relation to what they think, or their opinion about it. 

However an exception to this is rule is the evidence given by an expert, who has the qualifications or experience to give an opinion. Expert evidence includes a doctor, accountant, valuer or academic in a particular field. Reports from such professionals are annexed to an Affidavit along with the qualifications of the expert.  

5. Confidential communications 

Your Affidavit or documents disclosed, annexed to an Affidavit or tendered through a witness, cannot be confidential information. This includes: 

  1. information that you have given or got from your lawyer; 
  2. the substance or details of any negotiations with the other party; 
  3. things that are said or done at mediation or in family dispute resolution; and 
  4. things that are said or done at family or couples counselling. 

However, you may give evidence of an agreement made in writing. 

6. Irrelevant information or arguments about past behaviour that has no connection to the current case 

Such evidence is usually inadmissible. However, you can give evidence about past behaviour to show a pattern of behaviour leading to, or directly connected with, your case. For example, evidence of previous incidents of family violence is admissible if relevant to your case.  

Getting specific legal advice is important. 

7. Improperly or illegally obtained evidence 

This is a very specific area of the law and legal advice is required. For example recording a telephone call by way of intercepting the telephone line is an offence in Victoria and at Federal levels.   

The Family Law Act 1975 (Cth) (FLA) also sets out what information is confidential and inadmissible.  

Where rules of evidence do not apply  

Section 69ZT of the FLA sets out that the rules of evidence do not apply in parenting proceedings unless the Court orders otherwise. This does not mean that adherence to the above rules should be ignored as the Court retains discretion to disallow evidence that is effectively not helpful to the Court in deciding the case.  

Section 138 of the EA also permits the Court to admit improperly or illegally obtained evidence if the desirability of the evidence (its probative value) outweighs the way in which the evidence was obtained (its prejudicial value).  

How we can help 

Our Family & Relationship Law Team at Coulter Legal are experienced in evidence gathering, building your case and objecting to irrelevant and inadmissible evidence in a cost proportionate manner, focusing on the outcome.  

Please do not hesitate to contact our office on 03 5273 5273 to arrange an initial consultation, free of charge, to discuss your personal circumstances and how we may assist you. 

Bonnie Phillips.
Bonnie Phillips Principal Lawyer Head of Family & Relationship Law View profile
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