Affidavit evidence family law
When considering affidavit evidence family law
judges have been clear that collusion between witnesses will damage a party’s
case. By the term “collusion”, we
include here a situation where a witness changes her or his evidence to make it
consistent with evidence of another witness. Where affidavits of different witnesses
include identical content and where it appears that an affidavit has been prepared
by a solicitor without the input of the person swearing the affidavit, it is
very likely that the family court will give the evidence set out in the
affidavit little or no weight.
Where the same words are used in affidavit evidence
family law courts have expressed the view that this is very suggestive of collusion
between witnesses. Alternatively, that it is suggestive that the person
drafting the affidavits has not used the words of either or both of the persons
who have sworn or affirmed the affidavits. In either case, the value of the
evidence is severely compromised.
If you are in proceedings before the family courts,
it is very important that when preparing your affidavit evidence family law concerns
regards preparation of evidence are addressed.
Contact LGM Family Law (Ph.: 07 3506 3651). Our experienced
family lawyers Brisbane and family lawyers Brisbane Northside are ready to
assist you with preparing your affidavit evidence and other court documents or to
provide advice in any area of family law. We are committed to assisting our
clients to achieve the best available outcome for their circumstances. You are also
welcome to read on…..
The courts have said that it does not matter
whether the identical passages in affidavit evidence was the result of
collusion between the witnesses or was the result of one witness using in her
or his affidavit some or all of the content of the affidavit of another witness.
In either case, the affidavit evince of each witness is substantially devalued where
no satisfactory explanation has been given of what occurred. Ge Black in In In
the matter of Colorado Products Pty Ltd (in prov liq)  NSWSC 789; (2014) 101 ACSR 233, said that it was not possible in these circumstances for
a Court to be satisfied that the content of the witness’ s affidavit represents
“a genuine recollection of events”.
Where substantially identical content appeared in
affidavit evidence family law courts have considered that that evidence is devalued.
In the decision of the Federal Circuit Court of Australia in Wakeley & Wakeley  FCCA 3707 (18
December 2018), each party was seeking orders for property distribution after the
breakdown of their marriage. Some issues that arose for determination were whether
the wife had purchased her siblings’ share of her parents’ property.
case, evidence of two witnesses in the wife’s case, as given in the Affidavits
of Mr A and Ms B was in many places identical. Identical paragraphs in the affidavits addressed
an important issue in the case regards the argument of the wife that she owed
Mr A and Ms B a total of $360,000 for interests that the wife alleged they had
in a certain property which formed part of the property pool to be divided
between the parties.
When considering one witness’s affidavit evidence
family law court judge noted her agreement during cross-examination that her
Affidavit was prepared by the wife’s solicitor. The witness had admitted that
she had not told the solicitor what it was that he wanted written in her
affidavit. She agreed that the wife had been responsible for arranging
preparation of the affidavit and that she had then signed it.
The Court in Wakeley
said that these factors indicated deficiencies in the preparation of the evidence
of the particular two witnesses. The fact of identical language used in the
affidavits devalued the evidence of those witnesses significantly.
It is crucial that your affidavit evidence and the affidavit evidence
of your witnesses are prepared taking into account all relevant legal
considerations. Contact our family lawyers Brisbane or our family lawyers Brisbane
Northside. We have the expertise to assist you and to represent you at
Court. At the same time, we will continue seeking that an amicable settlement
be reached you’re your former partner in order to bring your court case to an
end without the need then to go to trial.
The information set out in this blog is not a substitute for legal advice. Contact our Brisbane family lawyers and North Brisbane family lawyers for advice tailored to your particular circumstances.