PERSUASIVE AFFIDAVITS
The Formalities of Relevance
• s 55 & 56 Evidence Act (Cwth)1995
•s. 69 ZT Family Law Act (Cwth)1975
EVEN THE RELEVANT CAN BE
IRRELEVANT
Unless
U
l
th
the affidavit
ffid it iis PERSUASIVE,
PERSUASIVE the
th
fact that it contains facts which are, strictly
speaking,
ki
relevant,
l
t iis lik
likely
l tto h
have littl
little
relevance in producing the ultimate
result/s
lt/ sought
ht
WHAT A PERSUASIVE
AFFIDAVIT IS NOT
• NOT what the client wants
• NOT what the client says he or she should
receive
• NOT what the client says are the crucial
components
t off their
th i case
• NOT what the client regards as important
These things HAVE NOTHING to do with
preparing a persuasive affidavit. WHY? …
• Because the preparation of an
affidavit,, and,, in particular,
p
, the
preparation of a persuasive
affidavit is a job of law
affidavit,
law. It
requires
q
the exercise of p
proper
p
professional skill and care
A SUGGESTED APPROACH
IIn the
th preparation
ti off a persuasive
i affidavit,
ffid it
start at the point where many practitioners
fi i h – i.e.
finish
i th
the client’s
li t’ story
t
as th
the client
li t
wants to tell it.
A SUGGESTED TEMPLATE
The fifive-step
Th
t process (which
( hi h iis really
ll an 8
8step process) to the preparation of a
professionally
f
i
ll prepared,
d persuasive
i
affidavit …
STEP 1
What specific Orders are consistent with
my instructions … AND
Are supportable by reference to the
relevant section/s of the Act/s … AND
Are supported by the relevant authorities
STEP 2
Whatt ISSUES are di
Wh
directly
tl relevant
l
t tto
those specific Orders AND the legislative
requirements
i
t AND th
the principles
i i l
underlying them
STEP 3
What are the most / least important of
those issues
(Three points good, two points better, one
point
i tb
bestt off all)
ll) THEREFORE:
THEREFORE
What are my top three and what is my
best
STEP 4
Having decided on my top three (and,
thereafter any ancillary issues / findings)
thereafter,
findings),
what is the best way to structure the
presentation of those issues for maximum
persuasive effect
STEP 5
Really Steps 5
5, 6
6, 7 and 8 because:
Whatt is
Wh
i th
the b
bestt case, iincluding
l di th
the ttop
three for the other side and, in respect of
th t …
that
Repeat Steps 1 to 4
BUT …
Do Steps 1 to 5 (really 1 to 8) before you
put pen to paper, fingers to keyboard or
mouth to dictaphone
Sketch
Sk
t h a skeleton
k l t – lay
l outt the
th h
headings
di
and sub-headings and play with them.
C th
Can
these components
t be
b iimproved
d ffor
more persuasive effect
AND …
• Doing what I suggest is hard
hard. That’s
That s what
you’re paid for
• Learn from good examples of good work
• Take p
professional p
pride in yyour work and
do not be persuaded by those who don’t
STRUCTURE TONE and VOICE
STRUCTURE,
• Does the affidavit look “clean”
clean and easy to
read
• Consecutive numbers
• NO Exhibits to affidavits unless they are
absolutely ESSENTIAL
• Language – a conversation minus the crap
• Language
L
– who
h iis your client
li t
• “Don’t open too high” and don’t gild the lilly
• Concessions are crucial
FINALLY …
Doyle CJ – “The
The Sins of Oral Advocacy
Advocacy” –
available through the Bar Association and
published in the current edition of Hearsay
p
y
and
Dowsett J – Address to the new silks –
again available through Bar Association
and Hearsay
BEING PERSUASIVE IN WRITING AND DRAFTING
This is an intriguing title when applied to an affidavit of evidence, because normally when we
think of being persuasive, we think of argument. Logic and relevance are what comes to
mind. Yet an affidavit is a deposition of fact. It should not contain argument. How then can
we make an affidavit persuasive. In fact there are a great many factors that will affect the
persuasiveness of an affidavit.
I think that’s all that needs to be said about affidavits at the moment. Other speakers will talk
about the content of affidavits. I want to talk about novels and non-fiction writing. Chekov
said “form is the basis of all literature”. So we know that novels have form or structure but of
course, the art of good fiction writing is to disguise the structure as I think again Chekov said
“if someone’s going to be killed with a dagger in the third act of a play you must show the
dagger in the first act.” But of course, a well crafted play will simply have in the first act a
dagger lying on a table or hanging on a wall with no suggestion to the audience that it is
anything other than decoration or a prop. But of course when the dagger is suddenly produced
to stab somebody in the third act the audience harks back to having seen the dagger in the first
act. The point I simply want to make at this stage is that in story telling the sequence of
information is important. Where you put information in a narrative, and of course what you
put affects its coherence.
In non-fiction writing, the reader generally wants to know where he or she is to be taken;
wants to know if its worthwhile reading on. The reader has not taken up the work for
entertainment or pleasure, uncaring of where he or she is to be taken, but wants to get
something from the text. Structure is necessary and in contrast to fiction, in non-fiction it
should be obvious. Why that is so is explained by William Zinzer, an American author, highly
regarded for his comments about writing techniques:
“Learning to organise a long article is just as important as learning how to
write a clear and pleasing sentence. All your clear and pleasing sentences
will fall apart if you don’t keep remembering that writing is linear and
sequential, that logic is the glue that holds it together, that tension must be
maintained from one sentence to the next and from one paragraph to the
next and from one section to the next.” … Every step should seem
inevitable.
“Unity is the anchor of good writing. So, first, get your unities straight.
Unity not only keeps the reader from straggling off in all directions; it
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-2-
satisfies the readers’ subconscious need for order and reassures them that all
is well at the helm.”
Continuing to do anything I can to avoid talking about affidavits, I want to talk about another
book; the dictionary. At the outset, I said that normally when we think of persuasion and
argument we think of concepts such as logic and relevance. I want to deliberate on those
terms for a moment. The Concise Oxford Dictionary includes among definitions of argument
a reasoning process or a summary of the line of reasoning of a book. “Logic” is defined as
including a chain of reasoning and the inexorable force or compulsion of a thing, the necessary
consequence of an argument or decision. “Relevant” is defined as bearing on or having
reference to the matter in hand. You will notice that each of these definitions involves the
notion of connection, of sequence.
I suppose I had better return to the topic in hand; the drafting of affidavits. I hope it follows
from what I have said that the first thing you will have in mind when you sit down to draw an
affidavit is the question. What structure am I going to give it; what connections and sequence
will make this affidavit persuasive? That question begs another question. What is it I wish to
persuade my audience of? So I suggest that you start work on your affidavit by in fact
drafting another document, namely, the orders that you seek, and I don’t mean orders in broad
terms like “Such division of property as is just and equitable”. I mean orders that are specific
as to matters such as percentage division of a global asset pool, and as to the makeup in kind
of property to be received or retained by each party or which are particular in relation to
proposed arrangements for children. You should not be discouraged from doing this by the
prospect that, after you have crafted your affidavit and you appreciate fully what evidence is at
your disposal, you will revisit the orders sought and modify them. Such an interplay between
the orders sought and the evidence available is a feature of the presentation of a case properly
understood and prepared. The crafting of orders will lead you to identify the factors that in
court you will argue should lead to the orders sought. Thus a major connection has been
formed. So, if you are seeking 80% of the asset pool, you will be doing so for reasons such as
a disparity in initial contributions; contributions received from your client’s family,
inheritances; because of some special contribution or powerful s 75(2) factors. The
identification of these factors provides a pattern for persuasion. An affidavit, the headings in
which are those factors identified, is well along the way to being persuasive.
Time, chronology, is a commonly used organising pattern. A story, be it addressed to
financial matters or parenting issues, begins with the cohabitation and ends with the filing of
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the affidavit. No doubt that chronology provides a sequence that it is generally not the best
structure for affidavits. Of itself, it does not demonstrate connection between matters deposed
to and particular the legal issues in the case.
Another significant nexus that can be made is between the evidence and the path of principle
which a court must follow in dealing with a particular matter. For example, it is well known
that there is a series of steps to be followed in s 79 proceedings and there is a legislative path
which must be followed in proceedings for parenting orders. Therefore, if your material is
arranged and structured according to that path, it takes on, simply by that structure, a degree of
persuasion. So the headings for your affidavit might follow a legislative path or that set out by
principle.
For example, in property proceedings, the headings might be “the table of assets and
liabilities, contributions, s 75(2) factors, just and equitable considerations”, or in a parenting
case, “equal shared parental responsibility, should there be equal time, should there be
substantial time, s 60CC factors”.
The consequence of connecting the evidence to issues is that there should be no part of an
affidavit in respect of which you cannot answer the question “Why is it there?” or “To what is
that relevant?”. Indeed such questions should not need to be asked, by a reader because the
connection will be apparent.
Framing the issues
I’ve said you need to use issues as headings.
The need to constantly ensure that the deposition of fact is connected to some issue that must
be determined may also mean that you will need to identify and define issues at a level below
headings such as “The table of assets and liabilities, contributions, or s 75(2) factors”. They
could be called Sub-headings. I mentioned earlier that strictly speaking an affidavit should be
just a deposition of fact. So, if we want to confine our client’s case, perhaps make admission,
where do we do this? An application may not be the appropriate place to do it. Since we do
not use pleadings maybe an affidavit is an appropriate place for admissions, not just of fact,
but of issues, although my personal preference is that those matters would be also contained in
a separate document, such as a case outline or joint agreement signed on behalf of the parties.
What I have in mind is, for example, a situation where you and your client are prepared to run
the case on the basis that, save for an inheritance, all the other contributions of each of the
parties should be seen as of equal weight. If that is the situation then you will not wish to
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-4draw an affidavit by your client which canvasses all of those other contributions in detail. If
none of the other avenues to which I have referred are employed, then such an affidavit might
depose to the disparity in initial contributions or inheritance that is relied upon, followed by a
passage such as:
I do not contend that the various other contributions made by the mother as
homemaker/parent and part-time worker and her contributions to the
maintenance and improvement of property are other than equal to mine as
primary wage earner, and in parenting and home-making.
A note of warning is simply that you must be alert then to meet any depositions from the other
side, about other contributions, if the other side wishes to argue those contributions favour that
side. That’s why its best to secure agreement prior to the filing of affidavits, or at least to have
the extent of disagreement established. If there is disagreement, your clients’ affidavit might
be limited and expressed to be limited, to matters in rebuttal of the suggestion that other
contributions favour the other side.
The point again is, you will identify by a statement or heading, to what issue each part of the
deposition goes.
Impediments to persuasion
The corollary of what I said above is that the inclusion in an affidavit of any irrelevant
material, any material that cannot be seen as connected to an issue, detracts from the
persuasive power of the affidavit. So too do many other factors, but I wish only to mention
one, that I will call “overstatement”. For example, “He brought nothing into the relationship”.
This statement risks being exposed as an assumption under cross-examination. “Did he tell
you he had nothing?” “Did you know what was in all of his bank accounts?” “Do you know
whether he kept a separate account or not?”
Would it have been better to say “He made no contribution to wedding and honeymoon
expenses or the setting up of the flat which we rented for the first two years of our
cohabitation. There was no sign that he had any assets. Another example, “I owned a parcel
of land worth $300,000.00”. This of course may be struck out unless your client is qualified
to value land. Would it be better to depose in terms such as “I purchased a property in X for
X”. Prior to cohabitation “I improved it by the following ……………… which cost
…………..” “I made improvements after we cohabited”. “I sold it on …………. for A.
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As I indicated, there are many other techniques or factors which will increase or decrease the
persuasiveness of a deposition. They include voice, tone, language, specificity rather than
generality, strategic concessions and other means of maintaining or promoting credibility.
These will be addressed during the course of the day.
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THE DRAFTING OF AFFIDAVITS FOR FAMILY LAW ACT PROCEEDINGS
(Colin Forrest, Barrister)
First delivered 10 May 2004 to an Accredited Specialist CLE/CPD Session
Delivered again for FLPA Qld Seminar 20 February 2009
INTRODUCTION
1.
Before drafting each and every affidavit to be sworn and filed in Family Law Act
proceedings practitioners would do well to re-consider the following rules from
the Family Law Rules 2004.1
Rule 15.09
(1) An affidavit must be:
(a) confined to facts about the issues in dispute;
(b) confined to admissible evidence;
(c) …..
Rule 15.13
(1) The court may order material to be struck out of an affidavit if the material:
(a) is inadmissible, unnecessary, irrelevant, unreasonably long, scandalous
or argumentative; or
(b) sets out the opinion of a person who is not qualified to give it.
(2) If the court orders material to be struck out of an affidavit, the party who filed
the affidavit may be ordered to pay the costs thrown away of any other party
because of the material struck out.
1
Similar provisions are found in Part 15 Division 15.4 of the Federal Magistrates Court Rules
2
2.
In so far as applications in a case (or interim applications) are concerned, the Rule
to re-consider each time is:Rule 5.09
(1)
The following affidavits may be relied on as evidence in chief at the
hearing of an interim or procedural application:
(a)
subject to rule 9.07, one affidavit by each party;
(b)
one affidavit by each witness, provided the evidence is relevant
and cannot be given by a party.
3.
In so far as trials are concerned, the Rule is:Rule 15.07
(2)
Each party must file, at least 14 days before a pre-trial conference:
(a) one affidavit setting out the party’s evidence in chief; and
(b) for each witness the party intends calling at the trial:
(i)
one affidavit made by the witness, setting out the witness’s
evidence in chief; or
(ii)
if the witness refuses to swear an affidavit – a notice to that
effect, setting out the name of the witness and a summary of
the evidence sought to be adduced from the witness.
4.
As family law practitioners, we are constantly confronted by the well known
dichotomy of duty; our duty to the court and our duty to our client. Balancing
3
both duties is one of the skills of the proficient family lawyer. When you badly
draft affidavit evidence you are failing in both.
5.
Judges of the Family Court certainly consider the inclusion of inadmissible
material in affidavits as a failure in your duty to the Court. Justice Lindenmayer
(as he then was) in Lane and Lane [1976] FLC 90-143 considered affidavit
material full of inadmissible statements and said “
“This is an area in which a practitioner’s duty to the Court is not
discharged merely by accepting at face value his client’s unsworn
proof of evidence and reproducing it verbatim in a sworn affidavit.”
This statement was cited with apparent approval by Justice Warnick in a 1992
paper entitled “Professionalism in the Adducing of Evidence”.2 Repeated filing
of poorly drafted affidavits can only damage that very valuable professional
commodity, your reputation – with the Court and with your fellow practitioners.
6.
You fail in your duty to your client because you are not delivering the best
possible product for whatever the cost you and your client have agreed you will
charge for that work. Not only that, you have exposed yourself to the risk of
losing your client’s confidence when they see parts of their evidence being
excluded at the outset of a trial and you expose your client to the risk of having
costs orders made against them at the exclusion of such material.
2
Given by his Honour at the 1992 QLS/FLPA Family Law Residential held at Kooralbyn,
Queensland.
4
7.
The Family Court has by its 2004 Rules confirmed the importance of carefully
considered drafting of affidavit evidence. It has increasingly become a vital part
of the time and cost efficient administration of justice in our courts that exercise
Family Law Act jurisdiction. As Justice Warnick alluded to in his 1992 paper, it is
appropriate that every sentence drafted in an affidavit be considered by the
drafting practitioner in the same way as you would consider every question if you
were the advocate in court leading viva voce evidence. You would consider how
every question was phrased and the response for which it called, in the light of its
relevance and its admissibility. No less consideration should go into every
sentence that you include in an affidavit you draft and into every document that
you attach to the affidavit. Ask yourself every time, “is this relevant and is it
admissible?”
FORM AND STRUCTURE
8.
Importantly, Rule 24.01 of the Rules sets out the general requirements of form for
an affidavit that is to be filed in the Family Court. It should be complied with,
particularly with respect to margins and line spacing (which is not to exceed 1.5
lines). Presenting Counsel and the Court with difficulties in reading and again
later finding the evidence does not help your client’s case.
9.
Rule 15.08 (a) of the Rules relevantly says:-
5
“An affidavit must …. be divided into consecutively numbered paragraphs, with
each paragraph being, as far as possible, confined to a distinct part of the subject
matter.”3
10.
Our Judges and Federal Magistrates are charged with judicially considering
matters pursuant to statute. In property division matters, they are required to
consider matters that are set out in section 79(4) and then section 75(2) of the
Family Law Act. Those parts of the process follow the first stage of identifying
and determining the property of the parties or either of them and the value of such
property. In parenting matters, they are required to make orders that are in the best
interests of the child or children having considered all the matters set out in
section 60CC of the Act.
11.
Accordingly, the affidavit draftsperson should do their very best to marshal the
material they have gathered from their client and other potential witnesses into
“distinct part[s] of the subject matter” that accord with the matters the judges are
required to statutorily consider. Drafting your affidavits this way makes it so
much easier for counsel and judicial officer alike to identify the strengths and
weaknesses in your client’s case as compared to the other party’s case and for all
involved to focus efforts at the hearing upon the issues that really matter and for
structured consideration to be given to the evidence in the judicial determination
process.
3
Federal Magistrates Court Rules 15.25
6
12.
In property division matters, after the obvious introductory matters of
cohabitation, date of marriage, date of separation, age of parties, details of
children born of the marriage, the affidavit of evidence in chief of the applicant or
respondent should then be set out in a manner that follows the staged process that
has now become almost second nature to family law practitioners.
(i)
Presentation of evidence going to the identification and valuation of the
property of the parties or either of them. Do not forget important matters
such as discretionary add backs at this point.4
(ii)
Presentation of the evidence as to contributions – financial, non-financial
and to the welfare of the family constituted by the parties and any children
of the marriage.
(iii)
Presentation of the evidence to be considered pursuant to the remaining
matters in section 79(4) including all of those matters set out in section
75(2), sometimes best done seriatum.
(iv)
Presentation of evidence going to the justice and equity of the orders that
are proposed to be made.
13.
In parenting matters, again after the introductory matters have been dealt with, the
draftsperson should then present the evidence as best they can having regard to
the matters set out in sections 61DA, 65DAA and 60CC, again seriatum and
4
Such as in Townsend v Townsend [1995] FLC 92-569 and Farnell v Farnell [1996] FLC 92-681
7
under headings if possible, but, of course, flexibly so depending upon the
particular requirements of the case.
14.
Brevity and precision in affidavits can be well rewarded at the decision stage. In
my experience, it is the evidence that is led with respect to the many and detailed
issues relating to contact and specific issues that could be improved generally.
Orders should not be sought with respect to precise matters of contact or
parenting issues without leading evidence that actually supports the application.
Try making submissions to the Court that a particular order is necessary to be
made in the best interests of a child without being able to point to evidence that
supports that contention.
15.
As to other applications in the case such as applications for injunctions, at the
drafting stage it is best to consider the principles that will be relevant to the
determination of the application and to marshal the evidence again in accordance
with the likely consideration of those principles by the judicial officer who hears
the application.
Determining an interlocutory application for an injunction
requires the Court to find that there is a serious issue to be tried and that the
balance of convenience supports the making of an order.5 The draftsperson must
strive to present the evidence in such a way that enhances the prospect of the
Court deciding on one or both of those issues in favour of the party represented.
Structure, precision and brevity are key considerations.
8
16.
In my experience, particularly at interlocutory stages, the fewer documents that
are attached to affidavits the better. Little is as bad for your case as having to tell
the judicial officer that “yes” he or she is expected to read an affidavit made
millimetres or even centimetres thicker by the attachment of documents,
particularly if some, like much solicitor’s correspondence, could be done without.
17.
When considering the attachment of a document, ask yourself is it really
necessary. Consider whether simply referring to the relevant point of the
document, particularly letters, would be sufficient. Make sure that the evidence in
the affidavit actually says what it is that you are trying to convey to the reader
about the document that you are attaching so that the reader does not have to
necessarily then interrupt the flow of thought, find the attachment and the relevant
part, then read it to understand why it is being attached in the first place. The
reader should be able to understand the evidence just by reading the affidavit, not
needing to embark on a judicial “snakes and ladders” exercise. This way, you
will keep the reader’s attention focussed.
18.
For trial affidavits, when considering the need to attach documents to support
your client’s case, consider checking with your opposing solicitor whether there is
any issue about the point that you want to prove with the document. If there is no
5
Blueseas Investments Pty Ltd v Mitchell and McGillivray [1999] FLC 92-856, citing
Yunghanns v Yunghanns [1999] FLC 92-836
9
issue, you can make your point in your affidavit without needing to attach the
supporting documents.
19.
If attaching documents to the affidavit, remember Rule 15.126 which requires the
pages of attached documents to be paginated, separate attachments if more than
2.5 cms in thickness and indexation of the attachments. This rule is very often
ignored or overlooked.
20.
When including evidence as to matters spoken by the witness or spoken by others
such as children, try to use direct speech quotes where possible. It is far better to
assert “he then said to me “I will collect the children from you at 6:00 pm at
McDonalds” rather than “he then said to me that he would collect the children
from me at 6:00 pm at McDonalds”.
RELEVANCE
21.
Relevant evidence, pursuant to section 55(1) of the Commonwealth Evidence Act
1995, is “evidence that, if it were accepted, could rationally affect (directly or
indirectly) the assessment of the probability of the existence of a fact in issue in
the proceeding.” There are no differing degrees of relevance. Evidence is either
relevant or it is not. Of course, relevant evidence may have differing weight, or
probative value. Relevant evidence can still be excluded by the Court pursuant to
section 135 of the Evidence Act if its probative value is substantially outweighed
6
Federal Magistrates Court Rules 15.28
10
by the danger that the evidence might be (a) unfairly prejudicial to a party; (b)
misleading or confusing; or would (c) cause or result in undue waste of time.
22.
When you are drafting an affidavit, you should be constantly thinking of the facts
in issue in the proceeding and whether or not the evidence could directly or
indirectly assist in determining any of those facts. The more probative, the better.
RULES OF EVIDENCE AND ADMISSIBILITY
23.
Justice Warnick said in his 1992 paper that the exclusionary rules of evidence
most often breached in affidavit material in Family Law Act matters are the rule
excluding hearsay material and the rule excluding opinion evidence. That
probably remains true today. The rule excluding irrelevant evidence and the rule
excluding evidence as to credibility are also often breached. In addition,
depositions that can be characterised as comment or as submission are often
wrongly included in affidavits in the Family Court.
24.
I do not intend to enter into any detailed analysis and discussion of these
exclusionary rules of evidence in this paper. For more detailed discussion, see the
papers presented at the FLPA Evidence Seminars held at the Family Court in
2001. Practitioners drafting affidavits of evidence to be used in Family Law Act
proceedings would also be well advised to keep a copy of the Commonwealth
Evidence Act 1995 within reach and to read and regularly re-read its salient
provisions dealing with these exclusionary rules of evidence. Experience has
11
taught me that you may be asked about one of those provisions when you least
expect it. Solicitors practicing in family law, more than many others, need to
know and understand the rules of evidence because of the constant drawing of
affidavits.
25.
The rule against hearsay evidence is very often breached. Breach of the rule is
generally inexcusable as it is probably the easiest form of inadmissible evidence
to identify. Of course, section 67 of the Evidence Act 1995 provides statutory
exception to the general exclusionary rule. If you are intent on putting something
into evidence that you clearly understand to be hearsay, you should know and
understand all of the provisions of the Evidence Act relating to hearsay but most
particularly section 67, including the discretionary power it gives the Court, a
power that certainly has been used to allow hearsay evidence to be admitted.7
26.
As to the exclusionary rules of evidence relating to opinion, most of us have little
difficulty determining when expertise, or as the statute provides “specialised
knowledge based on the person’s training, study or experience”8 is required to
make evidence of an opinion on a certain matter admissible. If the opinion
evidence given is based “wholly or substantially” on such knowledge it is
admissible if relevant to a matter in issue in the trial.
7
8
See Kayes v Kayes [1999] FLC 92-846
See section 79 of the Evidence Act 1995
12
27.
In the Family Court, the area in which it appears that most difficulty is had with
the opinion exclusionary rules is, as Warnick J said9, where the distinction
between factual observations and opinion is blurred. Examples are a witness
deposing to things like “A acted affectionately towards B”, “when C arrived he
was drunk and aggressive”, “D was clearly upset” and “E and F are in a stable
relationship”. Importantly though now, section 78 of the Evidence Act 1995
provides an exception to the rule against opinion evidence being admissible if:“(a) the opinion is based on what the person saw, heard or otherwise
perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account
or understanding of the person’s perception of the matter or event.”
28.
I have been unable to find any relevant Family Court discussion of the effect of
this section but it is a provision that has been considered by the Federal Court. In
Guide Dog Owners & Friends Association Inc v Guide Dog Association of
NSW and ACT [1998] 480 FCA, 5 May 1998, Sackville J discussed the
application of the section and said:“Section 78 does not seem to require an expression of opinion to be
supported by a recitation of the primary facts on which it is based. But in
the absence of some attempt, as best as the witness can manage, to recount
the nature and context of the conversations to which he was a party, it is
difficult to give much weight to the opinion as to the effect of the
conversations. This is especially the case where the opinion is expressed in
language that reflects one of the critical issues in the case and is adopted
(with minor modifications) by other deponents whose affidavits are to be
read by the respondents. I appreciate that s 80 of the Evidence Act has
abolished the "ultimate issue" rule, but that does not prevent the form in
9
See the same 1992 paper he presented.
13
which an opinion is expressed being taken into account for the purposes of
the exercise of the discretionary power conferred by s 135.
Section 135(a) requires the probative value of the profound evidence to be
"substantially outweighed by the danger that the evidence might be
unfairly prejudicial to a party". In my opinion, the probative value of the
preferred evidence is substantially outweighed by the danger referred to in
s 135(a). A statement couched in the form of the last sentence of par 19 is
intended to go to the heart of the issues to be decided in this case, yet
provides no basis for the witness's characterisation of the effect of the
conversations. I accept, of course, that Mr Finucane cannot be expected to
recall in detail each of the many conversations to which he refers. But he
should be able to provide sufficient examples of the conversations to give
content to his opinion and to afford the applicant a full and fair
opportunity to test that opinion in cross-examination.”10
29.
Clearly then, whilst you might get bald statements of opinion past the first
challenge as to their admissibility by reliance upon the lay opinion exception
provided for by section 78 of the Evidence Act, your statement of lay opinion may
not survive a challenge relying upon the broad discretionary power given the
Court by section 135 of the Evidence Act where “the probative value is
substantially outweighed by the danger that the evidence might – (a) be unfairly
prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in
undue waste of time”.
30.
The greater the recitation of the primary facts upon which the opinion is based in
the affidavit the greater the chance of the lay opinion being allowed in and
attracting some meaningful weight in the process of judicial determination that
10
The same sentiments were similarly expressed by Sundberg J in Neowarra v State of WA [2003]
FCA 1399, 8 December 2003
14
follows. So, by way of example, consider the difference in the following pieces of
evidence.
“When I married Sandra I owned a motor car that was worth $2,500.”
and
“When I married Sandra I owned a 1974 Ford Escort XL sedan. It was a 2
door 4 speed manual with a 1300 CC engine that I had purchased brand
new only 2 years previously for the total purchase price of $2,985. I had
only driven it about 30,000 kilometres to that point in time and had it
regularly serviced as per manufacturer’s requirements. I had had no
accidents in it nor experienced any mechanical problems with it to that
point in time. When I traded it on a new Holden Commodore two years
after our marriage, I was given a trade-in allowance of $1,500 for it.
Accordingly, I believe the car was worth about $2,500 when we married.”
31.
Ultimately, it is the opinion of the judicial officer that determines your client’s
case that matters. In order to successfully influence him or her to form opinions
and arrive at conclusions in favour of your client it is primary facts rather than lay
opinions that need to be packed into your affidavits.
32.
As to the credibility rule, section 102 of the Evidence Act makes evidence that is
relevant only to a witness’s credibility inadmissible. You cannot, therefore, put
15
evidence in your affidavits that only goes to the credibility of the witness who is
swearing the affidavit. An example I have seen is “I am a retired detective. I was
in the Queensland Police Service for 35 years.” That evidence was relevant to no
matter in the proceedings. It was only included to try to bolster the credit of the
witness where other parts of his evidence touched on factual matters in dispute. It
was struck out by agreement between counsel.
33.
Matters of submission such as “The Court should grant the percentage division I
seek in my application because my career was put on hold whilst I had children
and I could be earning a lot more now than I am if I had not done so” should not
be included in affidavits. Save them for a written outline of submissions or your
oral submissions.
34.
Make sure that you know and understand the effect of section 131 of the Evidence
Act that keeps out evidence of settlement negotiations except in certain defined
circumstances. It is surprising how often this is overlooked, especially by the
attachment of letters between solicitors.
AFFIDAVITS IN REPLY
35.
Rules 15.06 and 15.07 of the Family Law Rules 2004 set the bar quite high with
respect to any attempt to read more than one affidavit of evidence in chief of your
client at a trial of any matter in the Family Court. Of course, by the rules included
in Part 1.3 of the Family Law Rules 2004 the Court may dispense with
16
compliance with the Rules or order otherwise than in accordance with the Rules.
When doing so it may consider:
(a)
the main purpose of these Rules (see rule 1.04);
(b)
the administration of justice;
(c)
whether the application has been promptly made;
(d)
whether non-compliance was intentional; and
(e)
the effect that granting relief would have on each party and parties
to other cases in the court.11
36.
In some cases, there will be important evidence about fresh matters that have
taken place since your client’s affidavit of evidence in chief was filed, particularly
in parenting cases. In some cases, your client will have important evidence in
reply to the affidavit evidence filed by the other side. In such cases, it is best that
you draft a further affidavit that includes this evidence and file it if you can. Serve
it on the other side as soon as you can, whether you were able to file it or not and
seek dispensation from compliance with the Rules at the hearing to be able to read
it. To improve your prospects of being granted that dispensation, you should make
sure that the evidence is of relatively significant probative value. The lower the
probative value, the more burdensome your application will become to the Court,
with less chance of being allowed to be read notwithstanding the Rules.
11
See Rule 1.12(3)
17
CONCLUSION
37.
The preparation of affidavit evidence is clearly one of the most important tasks of
the family lawyer. Your client’s case will often stand or fall by the quality of the
affidavit evidence presented by you. As such, it is not something that should be
left to the very last minute to address. It is not something that should simply be
left to the most junior person in your office to attend to. Where resources permit,
ideally it is something that should be done in conjunction with the barrister who
you brief to conduct the trial or hearing. A conference and a team effort can
produce the best results. In this business, there is no better source of referral work
for you than a happy client. There is no better form of stress relief at the end of
the day than knowing you have done a professional job.
19 February 2009