You may be able to get evidence to support your arguments from:
witnesses who can say that your version of events is true
written documents which support what you say
reports from professionals
financial records (for example, bank statements, copies of invoices, bills, receipts)
letters or other correspondence
photos or videos that can support what you say.
What if there is no independent evidence available?
Often there is no independent evidence or witnesses to support your case. This is often the case with family violence.
If you do not have any independent evidence, you can still go ahead with your case. In this situation, the evidence given to the court is your story written in an affidavit.
If this is the case, it is important that the court believes you are giving truthful and accurate evidence. Do not exaggerate details to try to make your case seem more impressive. Stick to the facts.
What if someone else has the evidence I need?
If another person, such as a family member, friend or work colleague, saw something, you can ask that person to tell the court. They do this by making an affidavit. The person who makes the affidavit is known as the ‘witness’. If the other party disagrees with the affidavit, the witness may have to come to court. If the witness does not want to do this, you may issue a subpoena. A subpoena compels (makes) them come to court to answer questions about their affidavit.
See ‘Chapter eight – Disclosure and subpoenas’.
Not all evidence that is relevant can be shown to the court. The rules about evidence are complicated. Evidence that cannot be used in court is called 'inadmissible evidence'. The common types of inadmissible evidence are listed below:
Hearsay is something you heard from someone else that you did not see or hear for yourself. Usually, you cannot rely on hearsay in your evidence to the court. So, for example, you cannot talk about a conversation between your sister and ex-partner, which happened when you were not there.
There are exceptions to this rule. Evidence about a conversation might be allowed to work out the time and place of an event or why a person acted in such a way. So, you can say that a conversation took place, but not what was said. Also, hearsay can be allowed in cross-examination (see Chapter nine – the trial or final hearing). Get legal advice.
If you try to use hearsay evidence, for example in a Division 12A case, the other party may challenge its use. To avoid this, you can call the person who made the statement as a witness.
Usually witnesses can only give evidence about things they know as fact. So, a witness can give evidence of what they saw but not what they think about it. One exception to this is the evidence of an expert, who has qualifications or experience that they use to give an opinion. An example might include a psychologist or forensics expert.
Usually evidence used to harm a witness is inadmissible. If a party uses evidence to show their good character, you may be allowed to use evidence to show otherwise.
How a witness behaved in the past, if not relevant to the current case, is not usually admissible. However, you may be allowed to use evidence that shows a pattern of behaviour in certain circumstances. For example, you may be able to show evidence of previous incidents of family violence if violence is an issue in your case. Get legal advice.
Legally privileged information
Confidential information that you have given to or got from your lawyer, including negotiations to settle the case, are inadmissible. Things said at mediation or in family dispute resolution are inadmissible.
Confidential information may be used:
when the parties agree to the evidence being used
where most of the evidence has already been used
when the information was not meant to be confidential
where the evidence contradicts other evidence given about attempts to settle the dispute
where the case is to enforce an agreement made by the parties to settle the dispute.
Reports from professionals (expert witnesses) should only be used when their evidence is necessary to sort out an issue in dispute. If you use an expert witness, it needs to be included in an affidavit.
Expert witnesses must be:
given a letter outlining the issues you would like them to report upon
used by both parties to make one report, if practicable
informed of their obligations.
If the parties use two expert witnesses, both reports must be filed with the court and the experts may have to meet each other.
See Part 5 of the Rules in Appendix two.
It is very important to keep accurate, detailed and well-organised records of anything relevant to your case. It may be hard to decide what will be relevant, so keep more rather than less information. If your case goes to court, many of your records become evidence.
marriage certificate* and children’s birth certificates*
court documents (noting the date you got them)
a list or diary of important dates, including:
date of when you started living together or were married
dates of birth of children
dates of purchase or sales of goods or real estate
date of separation
court dates, hearings when documents are due to be filed, etc
dates of significant events, such as contact taking place or failing to take place
dates and details of violence or threats
dates and details of conversations that may affect your case
names, addresses and contact details of important witnesses you may need to call
copies of bank statements, invoices, receipts, policies and other documents about property
copies of correspondence
photos, videos, emails etc.
Add important items and events to this list or diary as they happen.
* If these were issued overseas, and a certificate is in a language other than English, you need to have the certificate translated.