VIC Family Law - Final Hearing Evidence and Affidavit?

[Shan_90]

Hi,

I have a Family Law final hearing for custody of children arrangments in March and have been trying for months to get legal representation. I cannot afford it and have had trouble with conflict getting linked into community legal centers.

I have affidavits and evidence that need to be filed by this Monday. I am having trouble with writing an affidavit. I don't know what things I should be putting in the affidavit or what evidence I should be submitting to the court? Could anyone please help me with some ideas of any information.

Thank you

 

[AllForHer]

It's very difficult for a stranger to provide guidance on what to include in an affidavit, so I can really only give some general guidance.

First, read section 60CC of the Family Law Act 1975 (Cth) here: FAMILY LAW ACT 1975 - SECT 60CCHow a court determines what is in a child's best interests

Section 60CC refers to all the elements the court will consider when determining what's best for the child/ren, so provide evidence in your affidavit that supports the orders you're seeking in respect to the considerations of section 60CC. It helps to frame the considerations in section 60CC as questions for you to answer- has the child expressed any views about their care arrangements? When? How? What did they say? What is the nature of the child's relationship with you? Can you provide for the child's needs, such as through suitable living and sleeping arrangements, capacity to take the child to school, etc.?

Second, keep your responses factual. Don't put your opinion on the paper. "He was drunk" is opinion. "I saw him swaying and I heard him slurring his words and I smelled alcohol on his breath" is fact. It is for the court to determine whether it accepts your version of the facts or the other parent's version of the facts. It won't be able to accept your version of facts if all you have provided is opinions.

People often find it helpful to use sub-headings in their affidavit, for example 'Background', 'Care arrangements since separation', 'Issues with family violence', etc.

Finally, keep it focused on the children's best interests. Don't just turn it into a slanderfest against the other parent. Keep it all framed in terms of how it affects the children.

 

[Shan_90]

Hi i was just wondering if it is illegal or admissible to use recorded conversations that have been transcribed in the federal circuit court to do with child arrangements? The reason i record all of my phone calls with my ex partner is because he is abusive and wont put that in text messages he is aloud to call me in relation to our son but it always ends up being abusive or him telling me he wont be dropping our son off at the times the court orders say. I was wondering if i could attach these to my affidavit as evidence or would this go against me?
Thank you

 

[Shan_90]

Thank you for your reply that somewhat helps. So I probably shouldn't put in the fact that he doesn't return our son on time and the things he says to me? I know it has to be short and to the point but I have difficulty putting it down like that.

 

[Tim W]

You know it can be an offence to record phone calls, yes?

Gotcha tapes disliked by court

 

[Shan_90]

Ok, great. Thank you for your reply, much appreciated.

Are you allowed to use text messages as evidence?

And I did not know it was illegal to record conversations as police officers had told me to do this

 

[Tim W]

The police should know better.

 

[AllForHer]

Returning them late, depends. Are we talking an hour late or a week late? If it's only an hour two, how does that negatively affect the kids? It probably annoys you, certainly, but it probably doesn't bother the kids at all, does it? So I would leave it out to avoid looking like the petty parent.

What he says to you, also depends. Is he calling you a b***h in front of your kids? Repeatedly? Is he calling you a b***h to the kids? If you've had one or two heated arguments, the court probably isn't going to put much weight on it because all exes argue. That's why they're exes. What the court is interested in is how you've attempted to co-parent, in spite of your arguments. If you've done all you can to reduce conflict and parent cooperatively, then the court will generally prefer your position over theirs.

If you turn it into a mudslinging match, you risk being seen as unsupportive of the children's relationship with the other parent, and the court is taking drastic steps to give kids the best chance to have a healthy relationship with both parents, not just one, including changing long-standing residency arrangements. You're better off showing how you've attempted to work with the other parent than just saying what a giant asshat they are.

Re: text messages - yes, they can be included. Reference them in the affidavit and attach them as annexures.

Re: recordings - it's illegal in *some* circumstances, not all, but in family law, they can do more damage than good. Besides, what does an angry phone call between you and the other parent have to do with the kids?

 

[Tim W]

Re: recordings - it's illegal in *some* circumstances, not all

The point being this:

(i) In Australia, it can be an offence for a private citizen to make telephone recordings
(your average suburban plod cannot be expected to be across all the detail of the
Telecommunications (Interception and Access) Act 1979 (Cth)); and

(ii) Because any recordings you make as a private person
are not always and automatically admissible as evidence; and

(iii) People tend to use recordings to make counter-threats,
and this can make already difficult circumstances even more difficult
(ie is an example of the "does more harm then good" that @AllForHer referred to above).

 

[Sweeney Todd]

Just as an aside, if text messages can be used in an affidavit, can transcripts / recordings of voice mails likewise be used? I take in point @AllForHer 's cautioning about coming off as petty and that all exes argue, but in some cases voice mails may be appropriate?