The power of evidence in family law disputes. Does mud really stick?
Being involved in family law litigation can be a long, stressful and expensive process. In the unfortunate event that you find yourself in Court following separation, certain documents need to be prepared including your Affidavit of evidence. Your Affidavit tells the Court about the dispute, your concerns and should provide a history about your relationship with your former partner.
A Judge will be informed by the evidence as presented and has the power and purpose to make decisions about your case in favour of one party or another. Unlike a criminal trial where the standard of proof is beyond a reasonable doubt, family law evidence is decided on the balance of probabilities. That means the Court decides whether your evidence, or any witness on your behalf is preferred than the position put by the other party.
When preparing your evidence you need to put your best foot forward about the relevant issues in the case. In some circumstances your very best evidence may be your personal recollection about a particular incident. You may also be able to rely on independent sources of information such as medical records, police records, bank statements, social media postings, text messages, audio or video recordings or the reports of independent experts. Your version of events will be closely scrutinised by the Court and will be criticised by your opponent.
In a recent family law decision, a Judge pointed to a number of inconsistent and unreliable allegations made by one parent against another in a dispute about where children should live.
Some of the allegations made by the unsuccessful party included matters of risk and family violence and suggestions about wishes of the children about where they wanted to live. The argument failed not due to some complex technical legal argument, but simply because there was stronger independent evidence to support the version of one parent over another.
