Important Distinction between Acceptance of Evidence and the Weight to be Given to the Evidence – Proper Care and Preparation Required

17/08/2017

In Courts of First Instance such as the Family Court of Australia or the Federal Circuit Court your case must be prepared to ensure that evidence is available for the Court to have an opportunity to consider the evidence you wish to rely upon so as to come to a decision.  It is necessary that proper preparation of the evidence is critical so that your case can be put forward and the evidence accepted and properly considered by the Court to give you the best opportunity to obtain a just and equitable outcome for you.

At Watson & Watson we are experienced and take careful steps to ensure that the appropriate evidence is available for the case at the Hearing.  It is necessary for you to provide timely information when requested so that we can prepare and have the case ready as required by the Court.

When the Family Court or Federal Circuit Court comes to consider a case the Judge considers the evidence available firstly and secondly, weighs up the evidence and makes a decision having regard to the evidence.  Where there is conflicting evidence the Court decides which evidence is more acceptable so as to come to a decision.  The decision is based on what the Court determines are the “true facts” of the matter.  The facts of the matter are determined by the Court and the decision is thereafter made based on those facts as to what are the appropriate Orders to be made.

In those circumstances if the appropriate evidence is not put to the Court then the Court is likely to make a finding on facts which are not factually accurate even though based on the evidence.

It is critical that the case is properly prepared and the experienced Solicitors at Watson & Watson are there to ensure this occurs.  This cannot occur without you providing information as and when it is required.

In a recent case decided by the Full Court of the Family Court in February 2017 there is a good reminder of the principles relating to the admission of evidence and based on the evidence deciding the “true facts”.  In this case the wife submitted that her non-financial contributions towards the acquisition and maintenance of property should have regard to the husband’s “physical violence and coercive controlling behaviour”.

This is a relevant factor to be taken into consideration by the Court.  However, the primary position is that the facts must be proven by evidence.  In this particular case the Trial Judge found that the assertions made by the wife were just too general and lacked particularity.  The original Judge was critical of the use of the words “regularly”, “repeatedly”, “routinely” and “often” in the wife’s description of events.

These words of description alone do not really assist a Judge in determining what happened and how often.  The Judge did not admit that evidence.

The experienced Solicitors at Watson & Watson provide clear direction to enable you to assist us in adducing the correct evidence to prove such assertions.

If that had been undertaken in the case the subject of the Appeal, the initial Judge would have accepted the evidence and then gone on and made a decision based on that evidence.

However in that case the Judge decided that the evidence was too general and did not amount to evidence.

The wife appealed the decision.  The Full Court correctly allowed an appeal on the basis that the evidence as presented by the wife was evidence.  The second question then to be determined by the Judge was what weight to give to that evidence.  Of course generalisations without any significant support are unlikely to be accepted if they are objected to or contested.  One simple example is the word “regularly”. 

Regularly could mean once a week as was the more usual interpretation of the word “regularly” 40 years ago or it could be once a year or once a lifetime.  One can understand that the Trial Judge did not accept that as “evidence” because it was of little use in determining the matters in dispute.  However as decided by the Full Court of the Family Court of Australia as a matter of law, it was some evidence and should have been accepted.  If that had occurred the Trial Judge would have considered the weakness of the case and made a decision based on his or her interpretation as to the weakness and the likelihood of that evidence being preferred over the evidence of the husband who denied the claim.

Having been met with the inadequate preparation and a decision having been made against the wife, the wife was put to significant costs in appealing the decision which was successful.  No doubt this was a significant cost to both the husband and the wife.  Thereafter an adjustment may be made to the property having regard to the evidence.

This case emphasises the large costs to the parties of getting the case wrong in its preparation.

If the appropriate information is not available then the Lawyer cannot prepare the appropriate evidence in the appropriate form.  We discuss these issues with you so that the appropriate evidence can be prepared.

This case in our view is not just a reminder of what evidence is required but also a reminder as to the need for proper preparation.

If you have any concerns please contact the experienced family Lawyers at Watson & Watson so that your case can be prepared in the appropriate form so that if it is not resolved the case will proceed in the appropriate manner so as to achieve the best result for our client.

If you have any concerns as to your matter please telephone Richard Watson or his Personal Assistant Shereen DaGloria to discuss your important matter and to arrange a conference so that we can discuss the matter with you and provide appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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