SA Ex Lied About Me in Affidavit - Defamation?

[Emma81]

Hi,
I am going through family court for approx 2years now, in my last appearance the affidavit that was submitted by my ex husband he has submitted he accuses me of cheating on him while we were married. This is not true, he is just saying it because he wants to damage my character in the eyes of the court.

Do I have a case for defamation of character?

Where do the guidelines stand as he is accusing me of a lot of things that aren't true and other than having to prove him wrong do I have a case for any of his accusations?

 

[AnnaLJ]

Hi Emma

Thanks for asking this question here. Sorry to hear about the situation you're going through.

An affidavit is a legally sworn document, so if the details in it are not true (and he knows this) then this in itself could be an offence on the part of your husband.

In order for your husband's statement about you to be defamatory it must convey an imputation about you that lowers your reputation in the eyes of reasonable members of the community or causes them to ridicule, avoid or despise you. In consideration of this, and assuming you aren't generally known to those around you to be someone of the character who has affairs, I don't think it would be difficult to lead a conclusion that the statement made by your husband was of a defamatory nature. Also, it is worth noting that 'truth' is a defence to a claim of defamation, so if your husband were able to prove the statement were true (ie that you had been unfaithful) then a defamation claim would be unlikely succeed.

However, as this statement was made in the context of court proceedings it is unfortunately a privileged statement and no action for defamation can therefore be brought in relation to it. This privilege only extends to the court proceedings (including documents and testimonies given in such proceedings), so if your husband were to publish his affidavit outside the court or make this same statement about you outside the court proceedings then the privilege would not apply and you may have a claim against him.

I would be keeping your ears to the ground on this one and consider pursuing a claim if he does make this accusation to your friends or others outside your court case.

All the best and hope this has helped,

Anna

 

[Emma81]

Hi Emma

Thanks for asking this question here. Sorry to hear about the situation you're going through.

An affidavit is a legally sworn document, so if the details in it are not true (and he knows this) then this in itself could be an offence on the part of your husband.

In order for your husband's statement about you to be defamatory it must convey an imputation about you that lowers your reputation in the eyes of reasonable members of the community or causes them to ridicule, avoid or despise you. In consideration of this, and assuming you aren't generally known to those around you to be someone of the character who has affairs, I don't think it would be difficult to lead a conclusion that the statement made by your husband was of a defamatory nature. Also, it is worth noting that 'truth' is a defence to a claim of defamation, so if your husband were able to prove the statement were true (ie that you had been unfaithful) then a defamation claim would be unlikely succeed.

However, as this statement was made in the context of court proceedings it is unfortunately a privileged statement and no action for defamation can therefore be brought in relation to it. This privilege only extends to the court proceedings (including documents and testimonies given in such proceedings), so if your husband were to publish his affidavit outside the court or make this same statement about you outside the court proceedings then the privilege would not apply and you may have a claim against him.

I would be keeping your ears to the ground on this one and consider pursuing a claim if he does make this accusation to your friends or others outside your court case.

All the best and hope this has helped,

Anna

Hi Emma

Thanks for asking this question here. Sorry to hear about the situation you're going through.

An affidavit is a legally sworn document, so if the details in it are not true (and he knows this) then this in itself could be an offence on the part of your husband.

In order for your husband's statement about you to be defamatory it must convey an imputation about you that lowers your reputation in the eyes of reasonable members of the community or causes them to ridicule, avoid or despise you. In consideration of this, and assuming you aren't generally known to those around you to be someone of the character who has affairs, I don't think it would be difficult to lead a conclusion that the statement made by your husband was of a defamatory nature. Also, it is worth noting that 'truth' is a defence to a claim of defamation, so if your husband were able to prove the statement were true (ie that you had been unfaithful) then a defamation claim would be unlikely succeed.

However, as this statement was made in the context of court proceedings it is unfortunately a privileged statement and no action for defamation can therefore be brought in relation to it. This privilege only extends to the court proceedings (including documents and testimonies given in such proceedings), so if your husband were to publish his affidavit outside the court or make this same statement about you outside the court proceedings then the privilege would not apply and you may have a claim against him.

I would be keeping your ears to the ground on this one and consider pursuing a claim if he does make this accusation to your friends or others outside your court case.

All the best and hope this has helped,

Anna

Thank you very much Anna I appreciate your information. He has said this to others but I cannot prove that he has.
It was that he had said it in an affidavit to effect my character to the court was what really bothered me!

Anna do you have a law firm in Adelaide as I am seeking to change firms and would love some advice of a very knowledgable and assertive lawyer to help me as It looks like my case will be going to trial and I really need a lawyer who who's what they are doing to help me!
Emma

 

[AnnaLJ]

Hi Emma

I don't personally have any contacts for law firms in Adelaide, though I do believe there are some links on this website.

Also, if he has said these things to others you could always consider having one of these people sign a Statutory Declaration confirming what was said and keeping this on file in case things do go down hill further and you do decide to make a claim.

So sorry to hear that you're having to deal with all of this! Please keep me posted with how things go for you.

Anna