What is an affidavit?
An affidavit is a written statement of facts from an individual which is sworn or affirmed to be true – it is essentially an oath that what they are saying is the truth.
An affidavit is a way in which you set out the facts of your case to the court. The affidavit becomes evidence in your case. It is the main way you present evidence (facts of the case) to a court. An affidavit will be used along with witness statements to prove the truthfulness of a certain scenario in court. It is important to include in your Affidavit any point that you may wish to raise if you go to trial. You cannot refer to something at trial if it is not included in your Affidavit.
An affidavit is a written statement setting out the facts of a case in your own words.
A Statutory Declaration is a different form to an affidavit and should not be used.
When do you need an Affidavit?
If you are representing yourself, then at some stage you will need to draft your own affidavit for your Family Court when you initiate your matter. You may also have to submit an Affidavit in response to an initiating application that is filed against you.
If you have someone you want to give evidence to the Court on your behalf, they may also as a witness, have to write an affidavit.
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.
What must you not include in your Affidavit?
You must not include "hearsay". In general, hearsay is considered as evidence that is offered by a witness of which they do not have direct knowledge but, rather, their testimony is based on what others have said to them. So, do not include someone else's opinion that you overheard or surmised, or something that another person told you the heard or saw, but rather ask that person to file an Affidavit saying what they themselves know, saw or heard.
If you refer to a written record, ie a bank statement or a document that supports your case, you may include that document as an Annexure to your Affidavit.
What format do you use?
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.
Affidavit Family Court (Word format)
Affidavit Family Court of WA (Word format)
Affidavit Federal Circuit Court (Word format)
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.
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. Relevance is an important concept to grasp and perhaps particularly difficult in family law matters which can be an emotionally charged time. Relevance pertains to events that have happened and not how you 'feel' about them.
An Affidavit should be short and to the point. Each paragraph should be no longer than 6 lines. 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.
If a fact you know is known to you in several ways or is made up of several components, you can use subparagraphs but generally, it is better for include individual numbered paragraphs.
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.
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.
The information in this article is general in nature and should not be considered as legal advice. You should seek the advice of a registered professional who will be able to appropriately assess your specific circumstances before offering their expert opinion.
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