Affidavits: Different Types & How to Use them

What are the different types of Affidavits & when are they used

When you are representing yourself you will need to think about how you will tell the Court what the Court needs to know to decide you case.

Usually this is done by putting all of the relevant facts and the facts you want to rely on in an Affidavit.

Affidavits are used to present your evidence to the Court.

Usually in family law matters, there are 2 types of affidavits. They are:

 

 

1. Initiating or Interim Affidavits; and
2. Final Hearing Affidavits.

Your initiating affidavit is the affidavit you file when you commence proceedings.

Your initiating affidavit will address and outline all relevant issues.

Your initiating affidavit will be used to deal with all interim matters.

If there is a Interim Hearing, you may file a further Affidavit addressing something specific.

If your matter proceeds to a final hearing, usually the Court will order the parties to prepare final hearing affidavits which will state all the evidence you want to give at the hearing.

There are differences between preparing a final hearing affidavit and an initiating affidavit or an affidavit for an interim hearing.

Apart from other differences, a final hearing affidavit will be much longer as it will contain a lot more detail and an initiating affidavit.

At an interim hearing, the court will usually consider the affidavits and arguments from the parties about the main issues of the matter.

Cross-examination only occurs rarely at an interim hearing.

Usually at the final hearing, your evidence in chief (your own evidence) is given by Affidavits.

The evidence is considered by the Court in more detail.

You, the other party and all witnesses may be cross-examined on the contents of your affidavits.

Most of the time you will not be allowed to give oral (spoken) evidence at a final hearing or trial about something you have not included in an affidavit.

The Court does not allow “trial by ambush” and requires the parties to give notice to the other side of what evidence they will be using at the hearing.

If one party introduces new material when they are at Court (or at a very late stage) the other party may be disadvantaged by not having time to prepare material to cover the issues raised by the new evidence.

The Court will not usually allow this to happen.

Affidavits – More Information

Many people do not know whether they should be swearing their affidavit on oath or affirming their affidavit. We explain the difference in the information sheet Do you swear or affirm your affidavit.

If your matter is in the Family Court of Australia then you need to read about the different Rules which apply to Affidavits in the Family Court of Australia.

If your Affidavit relates to an Interim Hearing in the Federal Circuit Court of Australia and you want the court to read any letters, reports or other documents you have then you need to attach those documents to your affidavit however as detailed above in the Federal Circuit Court you are limited to 5 separate Annexures. You can read how to annex a document to an Affidavit in our information sheet What are the requirements to attach documents (annexures) to Affidavits in the Federal Circuit Court.

If your matter is going to an Interim Hearing in the Federal Circuit Court then there is much you must read and familiarise yourself with in our separate fact sheet about the rules for Interim Hearings and Affidavits in Interim Hearings.

We have an Information Sheet with tips on how to prepare a good Affidavit in a Family Law matter.

 

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