Family law cases often involve emotive and complex issues, from divorce and child disputes to spousal maintenance and property division. In such cases, the presentation of evidence can often play a critical role in deciding the outcome. This article lists examples of poor quality or inadmissible evidence in family court that the judge is likely to dismiss.
Family law cases often involve emotive and complex issues, from divorce and child disputes to spousal maintenance and property division. In such cases, the presentation of evidence can often play a critical role in deciding the outcome. This article lists examples of poor quality or inadmissible evidence in family court that the judge is likely to dismiss.
If you have concerns about your family law situation and you feel you need legal advice, contact specialist family solicitor Helen Miller of Stowe Family Law. She is an exceptionally skilled family law expert with over 20 years’ experience, and Managing Partner at this well known specialist family law firm.
Without further introduction and in no particular order, here are 12 examples of types of evidence that are likely to not be considered by a family court:
1. Evidence must be relevant and follow the rules
The court can only look at evidence that is relevant to the case and “admissible” (able to be used in court). Evidence is deemed to be relevant if it supports your argument, is directly linked to your argument or helps disprove the other side of the argument. Evidence that is inadmissible includes: hearsay evidence (something you have heard someone else say), opinion evidence (how a witness believes someone else is thinking/feeling), character evidence (used to harm a witness’s credibility), past behaviour not linked to the case at hand, or confidential information (given or received from your legal representative).
2. Irrelevant testimonial evidence
Testimonial evidence can come from witnesses such as family members, friends, counsellors, or experts, and provides firsthand accounts or expert opinions regarding the circumstances of the case. The court will consider the credibility and relevance of this evidence, so if neither of these tests is met, it is unlikely the testimony will be considered. In addition, trying to adduce evidence from witnesses without first obtaining the permission of the court is also likely to result in dismissal, unless there are extenuating circumstances.
3. Irrelevant/superfluous documentation or information
Because documentary evidence is so varied, it is difficult to pin down exactly what the court would consider irrelevant or superfluous to the case at hand. Essentially, any document that does not help the judge reach a decision or provide them with information that will clarify a certain issue or point is unlikely to be admitted into evidence. Petty complaints and tit-for-tat evidence do not help the court in making significant determinations about the issues. Stating the other parent is always late for a single school pickup as evidence of their unfitness to look after the child, illustrates this point.
4. Illegally obtained evidence
If, for example, a parent submits a secretly recorded phone conversation with the other parent without their knowledge or consent. Recording conversations without the other party’s consent can fall foul of privacy laws and be deemed illegal, as can taking financial documents without consent. Evidence obtained in this manner is likely to be excluded as it contravenes the principles of fairness and legality, even if the content of the recording or document is relevant to the case.
5. Unauthenticated documents
There typically must be some form of verification of the document’s origin and authenticity. An unsigned, undated letter lacks the necessary authentication, making it unreliable and thus potentially inadmissible. For example, a parent presents an unsigned and undated letter purportedly from the child’s teacher criticising the other parent’s behaviour.
6. Personal opinions without expert basis
Personal opinions about complex issues such as mental health are not admissible unless they are provided by an expert witness who has the qualifications and has conducted a proper assessment. Non expert opinions on such matters are not reliable and can mislead the court. For example, a parent asserting that the other parent has a mental illness with no supporting evidence from a qualified mental health professional. Bear in mind that even if you were in possession of such information it would still be considered inadmissible because of the way in which the evidence was obtained and the strict confidentiality of medical records.
7. Testimony from young children
The evidence of young children is often considered unreliable due to their vulnerability to suggestion, limited understanding, and potential emotional distress. Courts typically rely on child psychologists, CAFCASS, or other professionals to ascertain a child’s wishes and feelings in a manner that is appropriate for their age and development. An example of this is where a very young child is asked by one parent to give evidence about who they prefer to live with.
8. Privileged communications
Communications between a solicitor and their client are privileged and cannot be disclosed in court without the client’s consent. This privilege ensures that clients can communicate freely with their legal advisors without fear that their discussions will be used against them.
9. Outdated information
Evidence must be current and relevant to the present situation. Historical issues may be considered if they have a direct bearing on current circumstances, but outdated information that no longer reflects the current state of affairs is typically not given weight in court decisions. For example, a parent trying to submit evidence of the other parent’s past substance abuse from many years ago, without any recent evidence of ongoing issues.
10. Unsubstantiated allegations
These are not only irrelevant but can also harm the credibility of the parent making the accusations. The court relies on verified facts rather than unsupported claims. For example, a parent including in their witness statement allegations of the other parent’s past criminal behaviour with no supporting evidence or documentation.
11. Extraneous correspondence
While some communication between parents can be relevant, especially if it shows patterns of behaviour or cooperation issues, mundane logistical emails are superfluous. The court is interested in communications that affect the child’s welfare or the parents’ ability to co-parent effectively. Submitting a large volume of emails between parents discussing everyday logistics, like grocery shopping or weekend plans, which do not relate to the core issues of the case is likely to annoy the judge and affect the likelihood of other evidence being allowed.
12. Personal opinions and speculations
The court needs factual evidence and concrete information, not personal opinion and speculation. Such documents do not contribute to the court’s understanding of the current situation or the best interests of the child. For example, a parent provides a written statement full of personal opinions and speculation about what they think the other parent might do in the future without any factual basis. By avoiding irrelevant and superfluous documentation, parties can help ensure that the court focuses on the most pertinent evidence, facilitating a more efficient and fair resolution to the case.
Each of these examples illustrates the importance of presenting evidence that is credible, relevant, and obtained through proper channels to ensure a fair and just outcome in family court proceedings.
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