Affidavits in the Family Court

Rules for Affidavits in the Family Court of Australia

The following Rules about Annexures to Affidavits only apply to Affidavits filed in the Family Court of Australia, not to Affidavits filed in the Federal Circuit Court of Australia.

An Affidavit is your written statement which sets out all of the relevant facts of your case in your own words.

Your Affidavit is the way you give the Court your evidence as a party to the proceedings, or give the evidence of a witness if you have to file Affidavits of any other people (eg. An Expert Witness such as your Doctor). Evidence is the facts of your case.

So what exactly do you put in your Affidavit? What the Family Court wants to see in Affidavits, are the relevant facts and circumstances you want to rely on in support of your case.  Unless it is your Final Hearing Affidavit, you need to keep your Affidavit as brief and short as possible, as the time Judges have available to read Affidavits can at times be somewhat limited and it is really only the necessary information directly relevant to the issues in dispute that Judges want to read.

When you are writing your Affidavit, concentrate on what facts and circumstances will help convince the Court the argument you are making to the Court as to what Orders you are suggesting the Court should make.

There is a specific form you must use for your Affidavit. The form is different depending on whether you are filing it in the Family Court of Australia or the Federal Circuit Court of Australia. There is a completely different form of Affidavit if your matter is in Family Court of Western Australia. A Statutory Declaration is a different form to an affidavit and should never be used and in any event, it would not be accepted for filing by the Court.

Specific Family Court Rules for Annexures to Affidavits

This Applies to Affidavits in the Family Court of Australia, not to Affidavits in either the Federal Circuit Court of Australia or Family Court of Western Australia.

New Rules came into effect from 1 March 2018 applying to all Affidavits filed in the Family Court of Australia. These Rules are set out in the Family Law Rules which you can access from a link on the Family Court website or from the Australian Government Legislation website.

Some of the most important changes to the Family Law Rules include:

You are no longer permitted to have any Annexures to an Affidavit at all.  Instead, any documents you want to rely on should be:

1. referred to in the Affidavit with the actual documents tendered at the time of the hearing; and
2. any document referred to in the Affidavit must be served on the other party when the Affidavit is served on them.

Tips to prepare your own Affidavit

 

It can help if you use a template or sample affidavit to draft your own affidavit.

If you use an affidavit a friend used in their family law matter you should ask whether it was drafted by a lawyer, as very often, affidavits drafted by a self represented person are too long and contain too much information that the court does not consider relevant.

If you use another affidavit as a precedent or as an example to help you draft your own affidavit, you should make sure it is a good affidavit to use as a sample.

To help you draft your own affidavit we have kits available with easy to follow instructions including an example. You can obtain those kits from our DIY Kits page.

The person writing (often called making) the affidavit is called the deponent.

The affidavit needs to be signed in front of a qualified person which is usually a Commissioner for Declarations, Commissioner of Oaths, Justice of the Peace, Lawyer (also called a Solicitor) or Barrister.

There are some key points to remember about Affidavits:

• An Affidavit contains a series of short, numbered statements. Each of those statements should set out a fact relevant to the case.

• Each statement in an Affidavit should follow on logically from the statement before it. Sometimes it is appropriate to detail facts in chronological order.

• Affidavits should only contain statements of fact, not statements of opinion. Broadly speaking, a fact is something you know and an opinion is something you think. You can only use facts that are known to you, not what you think about something. You can give evidence about something if you saw or heard it happen, but not if you just think something happened.

• An Affidavit should only state facts you saw, heard or experienced yourself. You should not put in your own affidavit, information told to you by someone else. If you need to use another person’s evidence about something they saw or heard, you should put their evidence in an affidavit of their own for them to swear or affirm.

• All statements should be true. If you make a statement in an affidavit that you know is not true, you commit perjury. Perjury is a criminal offence. You will also harm your credibility in the eyes of the court if you make a statement you know is not true, or if you don’t properly check whether it is true. Your credibility is your reputation for telling the truth and being trustworthy. If you are not considered credible, it will be bad for your case. If you knowingly make a false statement or allegation during a court case you may be ordered to pay some or all of the other party’s costs.

• All statements should be relevant. Make sure you remember to put all relevant information important to your case in your affidavit as you may not get the opportunity to let the Court know about it later. If you leave something out of your Affidavit you may also damage your credibility if it affects the accuracy of your affidavit or you mislead the Court.

• An Affidavit should be short and to the point. The affidavit should be about the issues in dispute and relevant to your case. If it is not, you risk annoying the Judge or Federal Magistrate and it can affect your credibility.

• It can be helpful if an affidavit is divided into sections under separate headings.

• The person signing the affidavit should sign the bottom of each page of the affidavit in the presence of a qualified witness as well as complete and sign the “jurat” clause at the end of the affidavit. If any alterations (eg. additions, cross-outs or corrections) are made to the affidavit, the person making the affidavit as well as the witness should initial each alteration.

When you are writing your affidavit you need to think about how it can be used to your best advantage and bear that in mind as to what you need to make sure goes into your affidavit. Read our information sheet How to use your affidavit to your best advantage in the family court to help you do this.

In Australia, for family law matters, the steps you follow to draft an Affidavit are the same whether you are in Queensland, New South Wales, Victoria, Tasmania, South Australia, Western Australia, the Northern Territory or the Australian Capital Territory.

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 going to an Interim Hearing in the Federal Circuit Court of Australia then you need to read know about the Rules which apply to Interim Hearings, especially the limits on your Affidavit to be 10 pages and only 5 separate annexures.

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.

You may also wish to read our  Information Sheet about the different types of Affidavits and when they are used.

 

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