When a matter proceeds to Court the parties must often file affidavits. An affidavit is a sworn or affirmed statement which provides a person’s story of events. It is these affidavits that provide the relevant facts and other information to the Court to assist it in making a decision.

Consider the following situation:

Two parents that have now separated are involved in a dispute about who should have day-to-day care of their children. The parties are not able to agree and the matter proceeds to the Family Court.

Each party provides an affidavit about why the children would be better to be in their care, rather than the other parent, including for example, that the children have a greater connection with them and/or are scared of the other parent. The parties’ close family and friends may also provide affidavits containing similar statements.

Every affidavit should be relevant to the matters before the Court. In this situation, there is no need for a party to provide evidence about what a relative or friend thinks should happen. The Court is not going to make a decision based on the beliefs of a party that is not directly involved in the proceedings, unless they have some type of expert knowledge.

If a party files an affidavit that is not relevant, it runs the risk of inflaming the situation (if the irrelevant information is contentious) and may well lead to delays in having the issues resolved. The Court has the power to remove irrelevant parts of or, if necessary, the whole affidavit from the Court file. Therefore, that information will not have any effect on the overall decision made by the Court.

Therefore, a person should ensure that all of their affidavits are relevant and likely to prove something or answer a question that the Court must decide. The most effective way to do so is provide facts based on what the person saw, heard or perceived, rather than opinions, beliefs, or what others have said.

In family matters it can be particularly difficult to provide affidavits that are limited to the facts. This is because there is usually a significant degree of emotion involved and a lot can be at stake, including the extent to which a person has contact with, or day-to-day care of, their children.

In some cases, it is made even more difficult because the other party does not limit themselves to the facts, and there is a significant urge to respond to all matters raised, whether they are relevant or not. While it is human nature to want to respond to everything, especially the more contentious allegations, it can make things more difficult and drawn out in the Court process.

It can be difficult to determine whether evidence is relevant. As a result, it is helpful to have someone that is not emotionally involved in the matter, and has experience in these types of proceedings, to draft or review affidavits.

Ben Ruback

Solicitor