VIC Is Previous Affidavit Admissible as Evidence?

[SallymetHarry]

Hi All,

I am acting as SRL in an final hearing for parenting matter this week, in which the other parent is accused of abuse of the child. The Respondent has filed a single page of my affidavit from a a case 10 years ago as supposed evidence of something I did to her. I am going to object to the material on the basis of relevance to the case but was wondering if a previous case affidavit is even admissible as evidence?

It seems pretty simple but I can't find an answer anywhere on the web, or in the legislation surrounding rules of evidence, etc. I have read the family court process allows more discretion on what evidence is permitted, so I was hoping someone here would have the answer!

Thanks for your time.

 

[AllForHer]

The rules of evidence aren't always clear-cut in family law cases. The Family Law Act 1975 allows the Court to deviate from the rules of evidence where it sees fit to do so, and as such, it often considers evidence in terms of relevance, rather than just whether it's admissible or not.

If you want, you can raise an objection of grounds of relevance, particularly if the allegation has nothing to do with the current dispute, but considering this is a parenting matter, I would be more inclined to respond to the alleged incident in your own affidavit, especially if it is regarding an act of violence and the other party is trying to show a pattern of violence perpetrated over a long period of time.

 

[SallymetHarry]

Thanks AllForHer for your considered response!

As we are only 2 days away from the case and the final filing date has passed, I will most likely try and raise the objection in court and see how I go. The violence allegations won't have much weight or relevance seeing the other party is now seeking the same order that the child live with me. We just have 2 days to hear all the evidence and I don't want to waste time.

I do have FM reasons For Judgement from the 10 year old case outlining the unreliability of the mother's evidence over the same allegations. Do you think I would bring this up as part of the objection?

Thanks again.

 

[AllForHer]

Ordinarily, I would suggest filing a copy of the FM's reasons for judgement from ten years ago, but given the time frame, it might end up in the other party seeking an adjournment on grounds of not having enough time to consider the new material. If you raise it during the hearing and have a copy with you, though, then who knows? The Judge may well want to have a copy of the reasons for judgement presented, since whatever decision that judge made is binding and was the only time the evidence of that allegation was actually tested.

Outside of that, my next thought is to consider the allegation in the context of relevance to the parenting matter. If it's related to violence, but she's agreed the child should live with you, then the risk of harm to the child which such allegations would usually be intended to support are kind of null and void. If it's just one incident, from ten years ago, and you've otherwise done no wrong, then it's really not relevant to the matter at hand. Likewise, I assume that since she has already conceded the child should live with you, then what is the dispute about? Is it just how much time the child spends with the mother? What are you proposing? What is she seeking?

 

[SallymetHarry]

I don't believe the matter of family violence is relevant to the current parenting issues in dispute but the Mother completed her own affidavit and has seen fit to include large tomes on fictional family violence in our past relationship and 60 pages of unreferenced appendices.

While the Mother is not a SRL, she may as well be as her lawyer has been highly incompetent (judges words at interim hearing) throughout the process and hasn't edited her affidavits or helped advise her of the actual issue at hand. So on one had she is making minimal admissions as to inappropriate punishment of the child, while on the other hand blaming past family violence against her for her own behaviour and then telling the court I am manipulating the child to lie.

The mother has only just filed the orders she is seeking which agree to the child living with me but she is also seeking unsupervised holiday contact and that I pay for all interstate travel. I am seeking supervised time for the mother and child, sole parental responsibility and shared travel costs. The ICL is also seeking this arrangement, backed up by multiple family reports.

I think the nerves about attending court are creating lots of questions for me about the possibilities but I just have to get into court and be prepared for all eventualities so I can get through this in one piece.

Thanks very much for your assistance AllForHer, it has been a big help.

 

[AllForHer]

You've got a lot going for your case, really - support of the ICL, the family reports and an interim order reversing residency being the most significant. Just remember to keep your calm and be honest in cross-examination. The Judge isn't just considering your answers, he's also considering your conduct in the witness box.

Let us know how you go.