Evidence in family law matters is usually given by way of affidavit. It’s therefore very important to make sure your affidavit complies with the rules, so your evidence is not “struck out”. Here is everything you need to know about affidavits in family law matters and tips for writing an affidavit.
First, what exactly is an affidavit?
An affidavit is a sworn statement filed in court setting out your evidence that may prove or disprove a fact. You may only give evidence in the family courts by way of affidavit, unless otherwise allowed and ordered by the court.
The affidavit must conform to formal requirements, be correctly sworn or affirmed, filed in Court and then served on all parties in the proceedings.
You must always tell the truth in an affidavit. Making a false statement in an affidavit is perjury and there are criminal sanctions as a consequence.
When do you need to file an affidavit?
In the Family Court, at the time you initiate family law proceedings you will need to file an affidavit setting out evidence supporting your initial application. Similarly, if you are responding to an application by another party, you will need to file an affidavit setting out the evidence that supports your response. This applies to both initiating applications and interim applications. At other stages as your matter proceeds, the Court may direct you to file additional affidavits. In the Federal Circuit Court, an affidavit can be filed for both interim and final orders, and when directed by the Court.
Writing an affidavit: what to include
When you are writing an affidavit, make sure it provides a full account of all factual matters in your knowledge which support the orders you are seeking. This includes all information the court should consider when it hears your application. You’ll need to be concise, stick to the facts, be very specific rather than general, and always include dates.
As per your duty of full and frank disclosure, you may not simply leave out things that you don’t feel will help your case: everything relevant to your matter must be included.
The content of your affidavit must comply with the rules of evidence – the content must be relevant and must comply with the hearsay rule and the opinion rule (exceptions may apply). For example, instead of saying “he threatened me”, you should say, “he said to me words to the effect, ‘XYZ’.”
Do not refer to anything said or any documents produced during an attempt to negotiate a settlement with the other party as such information is not admissible evidence (though there are some exceptions—check with your lawyer).
You must not include statements that are your opinions or any legal submissions. You should, however, include the facts that were the underlying basis for your personal opinion or any potential legal submissions made to the court.
How should you structure it?
Your affidavit could take a chronological approach, beginning with the oldest relevant event, for example when parties began a relationship. Continue until you reach the most recent relevant event. Alternatively, if there are major risk issues, it may be more appropriate for those matters to be addressed at the start of an affidavit.
When writing an affidavit, arrange your content into numbered paragraphs, with each paragraph only covering one topic.
Good organisation is key. Subheadings can be used for clarity and to help the court and other parties easily find specific information. For example, headings might be “Arrangements for the children after separation” or “Property accrued during the marriage”.
Formatting your affidavit correctly
Ensure you are using the correct form for the correct court. Both the Family Court and Federal Circuit Court have blank affidavit forms which can be downloaded and used by applicants and respondents. You can also obtain these by calling 1300 352 000 or from your nearest family law registry.
Affidavits must be typed and printed out single-sided.
The affidavit must be signed by you and your witness at the bottom of each page. This needs to be done at the point your affidavit is sworn/affirmed (see below).
The length of your affidavit will depend on the complexity of your case but you should ensure it is as concise as possible. (Note that affidavits in support of interim applications in the Federal Circuit Court are limited to ten pages and five annexures).
Including supporting documents (annexures)
You may wish to attach documents that are necessary to establish your case (for example, a contract of sale document). These are called annexures. Limit your annexures to documents that are truly essential to help support your case. Avoid including things like pages of SMS exchanges, which may not be helpful.
The rules on annexures are a little complicated and vary depending on whether you are filing in the Family Court or Federal Circuit Court. As they are too lengthy for us to set out here, make sure you read the section “Attaching documents” on the Family Court’s affidavit information page here (it explains the rules for both courts).
Swearing/affirming your affidavit
You need to sign and have your affidavit sworn or affirmed before a qualified person (eg. a legal practitioner or Justice of the Peace). This means you are giving a promise to the court that your affidavit’s contents are true or correct. Again, the rules on signing and swearing/affirming affidavits are complex so we again encourage you to read the official court page.
Filing and serving the affidavit
Your completed, signed and sworn/affirmed original affidavit is filed at the court. The courts encourage that this is done electronically through the Commonwealth Court Portal. You will need to serve a copy of the court sealed documents to each party and any independent children’s lawyer involved in the matter.
Is your affidavit compliant with the rules?
For the Family Court, an affidavit needs to comply with Rules 15.08, 15.09 and 24.01 of the Family Law Rules 2004. For the Federal Circuit Court, you need to note Division 15.4 of the Federal Circuit Court Rules 2001.
Getting legal advice before filing your affidavit is highly recommended. This will ensure your evidence is credible, consistent with other evidence (eg police records) and that it covers all relevant issues, and doesn’t leave out any relevant facts as this is just as damaging as putting irrelevant facts in.
If you would like any help writing an affidavit for a family law matter, or if you’d like a lawyer to review your draft, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
You may also like to read our tips for preparing another commonly needed document in family law: the chronology.
