How to Prepare a Good Family Court Affidavit

How do you write a good Affidavit yourself

If you are representing yourself, then at some stage you will need to draft your own affidavit for your family court matter. You might also have to write an affidavit of someone you want to give evidence to the Court as a witness.

An affidavit is a written statement setting out the facts of a case in your own words.

An affidavit is the main way of presenting evidence to the Court by a party or a witness. Evidence is the facts of your case.

What information do you put in your affidavit? The information the family court wants to see in affidavits are the facts and circumstances you want to rely on in support of your case.

When you write your affidavit you need to think about what facts and circumstances will help convince the court of your arguments and to make the orders you want the court to 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 or the Federal Circuit Court. A Statutory Declaration is a different form to an affidavit and should not be used.

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

If 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. 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.

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.

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.

We also have an Information Sheet about the different types of Affidavits and when they are used.

 

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