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.

Annexures

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.

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What are they?

They are first and foremost lawyers. The difference between them, are some lawyers specialise in different facets (e.g. adoption) while others don’t limit themselves or specify a particular area of specialty. This doesn’t necessarily mean a specialist lawyer will be more qualified and successful than a regular family lawyer. There is no room for assumptions.

What do they do?

They deal with family law issues in and out of court. Family law specialists provide advice, negotiate, collaborate, mediate and go to court for clients both nationally and internationally. Some family lawyers in Sydney specialise in a single facet of law; however, most family lawyers will deal with:

  • Family Settlements & Agreements
  • Child custody battles
  • Paternity Disputes
  • Divorce & Separation
  • Adoption
  • Child Support, and
  • Interstate and International relocation of families and children and more.

Why may you need to use one?

All matters may not need to go to court. However, lawyers can help streamline any disagreements and demands. Using a lawyer ensures any exchanges including claims and agreements are recorded and are legally binding to safe guard any persons throughout any mediation or physical exchanges in paper form.

If a matter is to be taken to court, yes you can represent yourself but if you are unfamiliar with the legal process and jargon. It is helpful to have a lawyer to guide and advise you through any court proceeding.

Within your lifetime there it is inevitable that you will be required to sign or may acquire an official legal document of some sort, may it be a marriage certificate, a will, superannuation papers or a death certificate of a loved one. More than (more than you think) not these documents which you may see as fool proof may be challenged in court especially during Will, Trust, Estate & Superannuation dispersal. These are the most typical family arguments and when a lawyer may not be compulsory, it sure takes a weight off your shoulders.

For criminal or high-risk proceedings involving Domestic Violence, Custody, etc. a family lawyer is a must. Whether your innocent or guilty having a family law specialist in Sydney on your side of the table, will help get the best outcome for both parties and at the same time preserving and protecting the external family and especially children that could be effected by the court proceedings.

So, now if you have worked out that you need to employ a family law specialist now you’re tasked with the job of procuring a good family law specialist in Sydney. And there are plenty to choose from.

How to choose a family law specialist in Sydney

Research, research, research. There are plenty of resources and trusted sources which can give you information on which type of lawyer you may need. Which brings me to the next point.

Do they specialise in the field that you need?

Depending if you require a lawyer for family relocation internationally or a lawyer for the adoption process. Hiring a lawyer that specialises in your particular issue will improve the chances of you reaching the desired outcome. Not only does it give you peace of mind that they know the process inside out and may have

Now for interviewing process.

Employing a Family Law Specialist should be similar to conducting a job interview because after all, you are hiring them to do a job, a significant one and perhaps expensive.

Like any job hiring process, before a job interview is organised, the Resume, CV or portfolio needs to be thoroughly assessed. Here you should make sure the family lawyer includes:

  • Qualifications
  • Specialties
  • References
  • Case success rates
  • Rates
  • Conditions

If the information above is not stated on their portfolio don’t fret, it gives you another question to ask them when you meet them. Yes, you do need to interview your potential lawyer in person to ensure you connected on a personal level no matter how experienced and qualified they may be. Apart from any further questions you have for the lawyer about how they approach cases and how their firm will handle your particular case, there are questions you need to ask yourself.

You should ask yourself, before choosing a family lawyer:

  • Do you feel comfortable with them? Your lawyer will be dealing with your personal and perhaps intimate details. Meaning you need to be comfortable opening up to them, disclosing information and are comfortable being completely open and honest with them.
  • Are they you confident with their qualifications and approach? Again, if you require a lawyer more than not, you will have a strong interest or place a high value on the outcome of your case. Especially the issue or case involves family members and children directly. The result of a case, the decision can be life changing (e.g. child custody) so you need to have complete confidence and trust that your family lawyer has your best interests at heart, and you are confident that they know best.

Everything can look swell on paper, but your natural instincts rule. Once you have ticked every box, asked every question and everything is just as a great family lawyer should be, BUT your gut tells you otherwise. It’s a no from me.

Never take second best, trust recommendations, trust references and just as important make sure you trust yourself.