What is an affidavit?
An affidavit is a statement written by a party to the proceedings or a witness.
It is the most efficient way to present facts to a court.
There is limited time to give personal accounts of evidence in court.
Most evidence is provided by affidavit to allow a case to run efficiently and quickly.
Any affidavit you want to use in court to support your argument must be served on all other parties.
This means you will have to ensure that the other side and the Independent Children’s Lawyer will also get a copy of the affidavit.
This is only fair so that everyone knows about the facts of the case and what each side is arguing.
Whenever you file an application or a response to an application in an Australian Court, you will need to include an affidavit from the person who is filing the paperwork.
Both the Federal Circuit Court and the Family Court have blank affidavit forms on their websites that can be used by applicants and respondents.
Make sure you use the correct form depending on what court your proceedings are in.
Preparing your own affidavit
You are able to write your own affidavit, however we recommend that you use a family lawyer Sydney to help.
If you are a low income earner, you may be eligible to receive funding for your case from Legal Aid.
If you call the court, the staff can assist with questions about the various court forms and the court process, however they cannot provide legal advice.
You must ensure that your affidavit is typed clearly and printed on one side of the page.
The affidavit should be divided into paragraphs that are numbered and are easy to reference.
Try to put between 15 to 80 words in each paragraph so that it is easy to read and reference.
You can include separate headings throughout the affidavit to make it more structured and easier for the reader; for example, you may put a heading like ‘Short history of our relationship’ or ‘Post separation contributions’.
Try to make it as logical and sequential as possible.
What should I put in my affidavit?
You should include recounts of all incidence that you feel are relevant to your case.
The most important thing you need to remember when drafting your affidavit is how what you are saying is relevant to support the orders you have asked the Court to make.
You must provide reasons to convince the court as to why they should make the orders that you have requested from them from either your initiating application or your response.
This means that your affidavit will need to be at least a few pages long.
You do not need to produce a history of your life for the court to read. It is a careful art being able to decipher what to include and what to exclude from an affidavit, so do your best to constantly place yourself in the judge’s shoes and consider what is relevant to what you are asking.
What should I avoid putting in my affidavit?
You should avoid sentences that are opinionated or lack any basis.
For example, you should not make a statement like “I believe that my house is worth $500,000 because the Sydney property market is doing well.”
You are not a licensed real estate valuer, so your opinion to the court is not relevant.
You could state something to the effect of “On 22 March 2017, I engaged a licensed real estate valuer to value my house. Attached is a copy of the report by the valuer. The report states that the house is worth $500,000.”
You should avoid mentioning facts that you have heard from other people.
This is referred to as ‘hearsay’.
For example, refrain from writing a sentence to the effect of “I heard from my brother-in-law that my spouse smoked marijuana on new years eve.”
There are, however, exceptions to the hearsay rule.
If there are special circumstances, a court may grant leave and allow you to include information that was hearsay.
You should attach any documents that you refer to in your affidavit to the back of your affidavit. These are called annexures.
For example, you may want to annex a copy of a contract of sale of property to prove to the court that a property was sold for a certain amount.
All annexures should be referenced in sequential order by a letter.
Your first annexure should be called Annexure A and your second annexure should be called Annexure B and so forth.
Swearing an affidavit
The person making the affidavit must sign the bottom of each page in the presence of an authorised person, such as a lawyer or Justice of the Peace.
Every annexure must have the following statement on it:
This is the document referred to as Annexure [insert reference number] in the affidavit of [insert name of person making the affidavit], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].
This needs to be signed at the same time as the main affidavit is signed.