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
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
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
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
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
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
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
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
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
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