Family Law Review: Special issue on affidavits and children’s evidence

Family Law Review: Special issue on affidavits and children’s evidence

March 19, 2012

(General Editors: Dr Anthony Dickey QC and the Hon Professor Jennifer Boland AM)

The March 2012 issue of Family Law Review (Vol 2 Pt 2) is of great practical value for family law professionals, with its focus on family law affidavits and children’s evidence. It features articles by Justice Stephen Thackray on the drafting of affidavits, Barrister Peter Hannan on the use of affidavits to adduce evidence and Justice Robert Benjamin on children’s evidence.

Family Law Affidavits: Justice Stephen Thackray’s article on the drafting of affidavits provides hints to practitioners about drafting family law affidavits that are likely to assist their ultimate consumer – the family court judge.  In a light-hearted piece from Justice Thackray, Chief Judge of the Family Court of Western Australia, examples provide guidance, in particular, about what NOT to include in an affidavit.

Use of Affidavits in the Family Court: Also focusing on the use of affidavits in the Family Court, Barrister Peter Hannan notes that Family Court trials, being “paper trials”, raise some peculiar evidential and forensic issues which are often not considered in the standard works on evidence and trial advocacy. Hannan’s article provides practical guidance on the law relating to evidence adduced by affidavit in the Family Court, both at trial and also on the hearing of interlocutory applications.

Judges Receiving Evidence Directly from Children: Continuing the evidence-related theme of the issue, Justice Robert Benjamin, Judge of the Family Court of Australia, explores the concept of judges obtaining children’s views directly from them.  This article considers the advantages of receiving evidence directly from children and the reasons why judges may be reluctant to do so. Justice Benjamin discusses examples of proceedings where he has seen children directly, and looks at approaches adopted by different countries’ courts.

Each issue of Family Law Review also includes regular “columns” in the key areas of Child Support, Family Dispute Resolution and International Family Law. In Vol 2, Pt 2 the topics explored are:

  • Child Support – Departure Prohibition Orders and Departure Authorisation Certificates;
  • Family Dispute Resolution – Capacity to Mediate: Always a Consideration; and
  • International Family Law – Immigration Issues Impacting Upon Children and Other Family Law Matters.

Another feature of Family Law Review is the Recent Cases Section. It is a particularly valuable feature for family law practitioners, exploring current issues and providing practical guidance in the form of summaries of, and commentary on, decisions of particular interest from the Family Court of Australia or the Federal Magistrates Court.  In the current issue, the decisions involve:

  • property division where a marriage was intact; case guardians;
  • property division involving a family discretionary trust; a binding financial agreement affected by technical errors;
  • the identification of de facto relationships with parties living separately; the aggregation of two relationship periods; and
  • equal shared parenting where distance is a factor; reasonable practicabilities.