Persuasive-Affidavits-Seminar.pdf

PERSUASIVE AFFIDAVITSThe Formalities of Relevance

• s 55 & 56 Evidence Act (Cwth)1995

•s. 69 ZT Family Law Act (Cwth)1975

EVEN THE RELEVANT CAN BE IRRELEVANTIRRELEVANT

U l th ffid it i PERSUASIVE thUnless the affidavit is PERSUASIVE, the fact that it contains facts which are, strictly

ki l t i lik l t h littlspeaking, relevant, is likely to have little relevance in producing the ultimate

lt/ htresult/s sought

WHAT A PERSUASIVE AFFIDAVIT IS NOTAFFIDAVIT IS NOT

• NOT what the client wantsNOT what the client wants• NOT what the client says he or she should

receivereceive• NOT what the client says are the crucial

t f th icomponents of their case• NOT what the client regards as important

These things HAVE NOTHING to do withThese things HAVE NOTHING to do with preparing a persuasive affidavit. WHY? …

• Because the preparation of an• Because the preparation of an affidavit, and, in particular, the , , p ,preparation of a persuasive affidavit is a job of law Itaffidavit, is a job of law. It requires the exercise of proper q p pprofessional skill and care

A SUGGESTED APPROACHA SUGGESTED APPROACH

I th ti f i ffid itIn the preparation of a persuasive affidavit, start at the point where many practitioners fi i h i th li t’ t th li tfinish – i.e. the client’s story as the client wants to tell it.

A SUGGESTED TEMPLATEA SUGGESTED TEMPLATE

Th fi t ( hi h i ll 8The five-step process (which is really an 8-step process) to the preparation of a

f i ll d iprofessionally prepared, persuasive affidavit …

STEP 1STEP 1

What specific Orders are consistent with my instructions ANDmy instructions … AND

Are supportable by reference to the relevant section/s of the Act/s … AND

Are supported by the relevant authoritiesAre supported by the relevant authorities

STEP 2STEP 2

Wh t ISSUES di tl l t tWhat ISSUES are directly relevant to those specific Orders AND the legislative

i t AND th i i lrequirements AND the principles underlying them

STEP 3STEP 3

What are the most / least important ofWhat are the most / least important of those issues

(Three points good, two points better, one i t b t f ll) THEREFOREpoint best of all) THEREFORE:

What are my top three and what is my best

STEP 4STEP 4

Having decided on my top three (and, thereafter any ancillary issues / findings)thereafter, any ancillary issues / findings), what is the best way to structure the presentation of those issues for maximumpresentation of those issues for maximum persuasive effect

STEP 5STEP 5

Really Steps 5 6 7 and 8 because:Really Steps 5, 6, 7 and 8 because:

Wh t i th b t i l di th tWhat is the best case, including the top three for the other side and, in respect of th tthat …

Repeat Steps 1 to 4

BUTBUT …

Do Steps 1 to 5 (really 1 to 8) before youDo Steps 1 to 5 (really 1 to 8) before you put pen to paper, fingers to keyboard or mouth to dictaphonemouth to dictaphone

Sk t h k l t l t th h diSketch a skeleton – lay out the headings and sub-headings and play with them. C th t b i d fCan these components be improved for more persuasive effect

ANDAND …

• Doing what I suggest is hard That’s whatDoing what I suggest is hard. That s what you’re paid for

• Learn from good examples of good work

• Take professional pride in your work and p p ydo not be persuaded by those who don’t

STRUCTURE TONE and VOICESTRUCTURE, TONE and VOICE

• Does the affidavit look “clean” and easy toDoes the affidavit look clean and easy to read

• Consecutive numbers

• NO Exhibits to affidavits unless they are absolutely ESSENTIALabsolutely ESSENTIAL

• Language – a conversation minus the crapLanguage a conversation minus the crap

L h i li t• Language – who is your client

• “Don’t open too high” and don’t gild the lilly

• Concessions are crucial

FINALLYFINALLY …

Doyle CJ – “The Sins of Oral Advocacy” –Doyle CJ The Sins of Oral Advocacy available through the Bar Association and published in the current edition of Hearsayp y

andand

Dowsett J Address to the new silksDowsett J – Address to the new silks –again available through Bar Association and Hearsayand Hearsay

C:\Documents and Settings\Steph\Local Settings\Temporary Internet Files\Content.Outlook\GUD6QRUN\BEING PERSUASIVE IN WRITING AND DRAFTING (2).doc

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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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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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draw 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.

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

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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.

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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:-

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“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

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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

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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.

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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

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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

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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 See Kayes v Kayes [1999] FLC 92-846 8 See section 79 of the Evidence Act 1995

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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.

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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

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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

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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

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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)

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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

Persuasive-Affidavits-Seminar.pdf

Documents

Transcript of Persuasive-Affidavits-Seminar.pdf