What is an affidavit?

If you are applying to one of the Courts, you may be required to file an affidavit.

An affidavit is a formal written statement setting out the facts of your case. The affidavit becomes evidence in your case. . It is the main way you present evidence (facts of the case) to a court.It must be sworn, or affirmed, usually before a Justice of the Peace, Commissioner of Oaths or solicitor, as a true record. Affidavits may also be sworn by other people in support of your case e.g. witnesses. The court has a precedent form to use

Evidence can be a complex matter. The Evidence Act 1995 (Cth) sets out rules about evidence. Some simple information is provided below, it is a guide only.

Any affidavit you file in court to support your case must be served on all parties, including the independent children’s lawyer (if appointed).

Why are affidavits important?

Affidavits present the facts you rely on for your case - your evidence. Oral (spoken) evidence is only allowed with the Judge's permission so you need to prepare your affidavits carefully.

When do you file an affidavit?

In the Family Court, you need to file an affidavit with an interim application, response or when directed by the Court. The Family Court has affidavit kits for applicants and respondents. They include a blank affidavit form.

In the Federal Magistrates Court, you need to file an affidavit with your application or response, for both interim and final orders, and when directed by the Court. The Federal Magistrates Court has a blank affidavit form which can be used by applicants and respondents.

You should use the form that is relevant to the Court handling your matter. For further information go to the Forms section of the family law courts website.

What can you say in a affidavit?

The affidavit is a statement of facts. It should set out observations without colour or comments. Generally the affidavit should not set out the opinion of the person making the affidavit. 

In writing your affidavit it would be useful to refer to the factors a court must consider before making an order about what is in a child’s best interest.

Issues that you may want to consider include who has been the primary carer of the children, what has been the arrangements for the care of the children until this time, and any concerns that you may have in relation to the safety of yourself and the children.

Can I prepare my own affidavit?

Although you can prepare your own affidavit, it is often not easy. If you prepare your own affidavit, the document should be typed or printed clearly on only one side of the page.

In writing your affidavit it would be useful to refer to the factors a court must consider before making an order about what is in a child’s best interest.

Issues that you may want to consider include who has been the primary carer of the children, what has been the arrangements for the care of the children until this time, and any concerns that you may have in relation to the safety of yourself and the children.

What does an affidavit look like?

The affidavit should be typed (double line spaced and 12 point font) or printed clearly on only one side of the page. The content of an affidavit should be divided into paragraphs that are numbered. It is a good idea to divide an affidavit into sections under separate headings; for example, the heading might be ‘Arrangements for the children after separation’ or ‘Property accrued during the marriage’. Each paragraph should, if possible, cover one topic or subject matter.

If you need help preparing your affidavit, you should get legal advice. Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.

What can I say in an affidavit?

An affidavit is a statement of facts. Therefore, you should include all the facts that are relevant in your case. Importantly, your affidavit should support the orders you have asked the Court to make in your application or response. The length of your affidavit will depend on the complexity of your case. Your affidavit does not need to be lengthy, so long as you include all the facts that you are relying on as evidence. Try not to leave out any relevant information as you may not get a chance to add it in later.

Can I give my evidence in court instead?

There is limited opportunity to give a personal account of your evidence in court. Most evidence is provided by affidavit. This allows a case to run more quickly and efficiently as all parties know what evidence is before the Court.

What should not be included in an affidavit?

Generally, an affidavit should not set out the opinion of the person making the affidavit; that is, it must be based on facts not your beliefs or views. The exception is where the person is giving evidence as an expert; for instance, a psychologist or licensed valuer. Where possible you should avoid referring to facts that are based on information received from others (known as hearsay evidence). There are, however, a number of exceptions to the hearsay rule. If you need to rely on hearsay evidence in your affidavit, get legal advice to see whether it would be admissible in court. You should not refer to anything said or documents produced in connection with an attempt to negotiate a settlement of your dispute, as these are not admissible as evidence in Court. There are some exceptions (for example, if a Family Consultant is present during the settlement negotiations, then the information is admissible) and if you want to refer to these, you should read section 131 of the Evidence Act 1995 (Cth).

How can you attach documents to an affidavit?

Frequently an affidavit refers to other documents e.g. a contract. Often it is helpful to attach a document to the affidavit. The document is then known as an annexure. You number each page of the document and if more than one document is attached refer to each by numbers e.g. Annexure 1, Annexure 2 etc... Each annexure must have a statement signed by the authorised person identifying the annexure as the document referred to in the affidavit. The wording of the statement is:

This is the document referred to as Annexure [insert reference number] in the affidavit of [insert deponent’s name], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].

The statement must be signed at the same time as the affidavit and by the same authorised person.

The Courts have different requirements about affidavits. For further information go to the Forms section of the Family Law Courts website to view affidavits of the Courts.

Affidavits by other witnesses

If you are relying on evidence from a third party to support your case, such as a family member, friend or professional, you will need to file a separate affidavit on their behalf. You should only file an affidavit by a witness if the evidence is relevant and cannot be provided by you.

Unless the Court orders otherwise, a child (under the age of 18 years) should not prepare an affidavit to support your case.

Signing an affidavit

The person making an affidavit (the deponent) must sign the bottom of each page in the presence of an authorised person, such as a lawyer or Justice of the Peace. On the last page of the affidavit the following details must be set out (known as a jurat):

bullet the full name of the person making the affidavit, and their signature
bullet whether the affidavit is sworn or affirmed
bullet the day and place the person signs the affidavit, and
bullet the full name and occupation of the authorised person, and their signature.

If any alterations (such as corrections, cross-outs or additions) are made to the affidavit, the person making the affidavit and the witness must initial each alteration.

Tip

It's a good idea to plan the affidavit before you start writing. Start by working out the headings for each section, and then write to those headings. This will make the affidavit easier to follow. The Court is preparing a brochure to assist with preparing affidavits for Interim Orders about children's matters.

(From Family Law Courts website)

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