Why Your Opinion Does not matter in Family Law Disputes: Just Give me the Facts

Family law isn’t a debating competition. A case is rarely decided by who feels the most strongly or who can describe the other person with the most creative adjectives. At times I have to remove the caricature from my face when advocates loudly protest their client’s case with little to no impact on the decision.

In court, what matters is evidence: what happened, when it happened, who was there, what was said or done, and what documents can help back it up.

I care about your experience. But for your affidavit, I need facts, not your feelings. I want your instruicons when you are of clear mind and have clear notes and are ready. We can take breaks, what we cannot do is undo the damaged caused when you provide a bad affidavit. 

Opinions (what to stop telling me):

• “He’s selfish.”
• “She’s toxic.”
• “He never cared about the kids.”
• “It’s unfair.”
• “they have a personality disorder.”

A Court can’t make orders based on the above. And I can’t draft a strong affidavit based on conclusions. Courts deal in relevant evidence, and affidavits that turn into character attacks, or speculation can be struck out.

The legal reason is that Affidavits are evidence. Evidence has to be relevant to the issues in dispute. Irrelevant material is unhelpful and not admissible. Did you know we also have page and annexure restrictions.

In financial/property proceedings, the Evidence Act 1995 (Cth) generally applies. That means:

• relevance matters (Evidence Act s 55)
• hearsay is generally not admissible unless an exception applies (Evidence Act s 59)
• opinion is generally not admissible unless it fits a recognised exception (Evidence Act ss 76–79)

The Family Law Rules also give the Court power to strike out affidavit material that is inadmissible, unnecessary, irrelevant, prolix, scandalous, argumentative, or contains unqualified opinions (Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 8.18). That’s the polite way of saying: don’t make the affidavit a rant. I have seen slabs of affidavit struck out, its embarrassing for everyone and costs can be involved.

Courts have enforced these principles by striking out affidavit paragraphs that are irrelevant, argumentative, scandalous or inadmissible.

Parenting cases have special rules and the evidence regime can be more flexible in child-related proceedings, but “more flexible” does not mean “anything goes”. The Court still expects affidavit material to be focused, relevant, and helpful, not an attack piece. If it’s not tied to the children’s best interests and the orders sought, it’s likely to be wasted print (and a waste of your legal fees).

The rule: facts are specific When you give me information for your affidavit, aim for:

• dates (or best estimate)
• times (if important)
• what happened (what you saw/heard/did)
• who was there (witnesses)
• what you did next
• proof (texts, emails, bank statements, invoices, reports)
• You may find that the proof, prompts your memory

Property affidavits: what to give me

• Your timeline
• when you started living together
• marriage date (if you married)
• separation date (and whether you were separated under one roof)
• any reconciliations (with dates)

Money and big changes

• your income and their income over time (rough is fine if it’s realistic)
• who paid what (mortgage/rent, bills, school fees, childcare, medical)
• major changes: redundancy, injury, inheritance, business change

Assets and debts (send documents where you can)

• real estate (address, mortgage, any appraisal)
• superannuation (latest statements)
• bank accounts (recent statements)
• vehicles including registration numbers (and any finance owing)
• credit cards and loans
• tax debts
• investments, shares, crypto
• business interests (basic financials if relevant)

Contributions (what the Court actually looks at)

• what each of you brought in at the start (savings, property, inheritances)
• financial contributions during (payments, deposits, renovations, lump sums)
• non-financial contributions (renovation labour, unpaid work in a business)
• homemaker/parenting contributions (running the home, primary care)

Your current circumstances

• health issues (and how they affect work/care, with evidence)
• earning capacity issues (and why)
• who cares for the children most of the time and how that impacts work
• significant ongoing expenses

Parenting affidavits: what to give me

The children’s details

• names and dates of birth
• school/childcare
• health needs (and any reports)
• The current routine (this is gold)

• who the children are with on each day
• changeover times and locations
• who handles school communication, homework, appointments
• what you want to change, and how it helps the children

Specific incidents (only the relevant ones) For each incident, tell me:

• date (or best estimate)
• what happened (plain language)
• who was present
• what you did next (messages, reports, medical visit, school notification)
• what evidence exists (screenshots, emails, photos, reports)

Communication and co-parenting

• how you communicate (text/email/app)
• what you’ve proposed
• what the other person’s response was
• any attempts to resolve issues (mediation, counselling, courses)

A quick way to send me “affidavit-ready” notes Use this format:

• Date:
• Event:
• Who was present:
• What was said/done (quote if you can):
• Evidence you have:
• Impact on the children / finances:
• What happened next:

Final word Your affidavit is not a character review. It’s your evidence and your story.

Give me dates, amounts, events, documents, and what happened next. That’s how I can draft an affidavit that reads clearly, sounds credible, and actually helps your case.