The contents of an affidavit will depend on what kind of case it is.
The Family Court has an affidavit that must be used in interim parenting order applications and which may also be used for applications for final orders. This format may also be useful for applications in the Federal Circuit Court. The form is divided into the following parts:
Parts A – C set out who the parties are, what the relationship to the other party is and gives details of the children
Part D sets out past and present facts and arrangements and future proposals under the headings ‘housing’, ‘supervision’, ‘the time the child spends and/or communicates with the other party’, ‘financial support’, ‘health’ and ‘education’
Part E sets out the individual needs of each child
Part F deals with health and other issues affecting those who will have the care of the children
Part G deals with other relevant issues not included elsewhere
Part H sets out the proposals for the child spending time with and/or communicating with the other party
Part I contains the jurat clause (signature of applicant and approved witness) described earlier. The information in each section of the affidavit must be relevant to the orders you are seeking. In completing each section and your application, especially Part G, you need to keep the court’s powers and duties in mind.
Give general information such as who was working, who was not working, and who has looked after the children, what the arrangements were for schooling, kindergarten, leisure and sporting activities
Write about any difficulties. For example, if there was family violence, outline when it started and give examples. If the police or other services were involved, include this information. If the family violence was non-physical, give examples of the form of violence.
Explain any other needs the children have, such as medical treatment and other special needs.
Mention any other issues that came up during the marriage including drug and alcohol use, mental health issues and any other things about the children’s well being.
Separation and current arrangements
Give details about separation – who moved out and what arrangements were made for the children at that time.
Explain who the children live with now, who else lives in the home with them and what role other people play in the children’s care and supervision. If there is a current parenting plan, include this information.
Describe how the children spend time with and communicate with the other parent, and for how long.
Include the children’s schooling (place and year level), and kindergarten details and who picks up and drops off the children.
Address other issues about the children including health, if child support is being paid and the relationship of the children with other people.
Detail any other court cases that have happened.
Give specific examples of issues that have come up during the separation – family violence or problems with handover. For example, if the other parent has cancelled seeing the children or has not turned up for handover. Include any continued drug or alcohol use or mental health issues that have affected the other parent’s ability to look after the children.
Facts that link to the relevant law
In this part of the affidavit try to link the facts of your case to the relevant sections of the Act. For example, set out what is in the best interests of the children. Make a checklist of the factors listed in Section 60CC of the Act and set out the facts that show your ability to look after the children.
Do not say things you cannot support later. If the court finds that you have made a false statement during a case you may be made to pay some or all of the other party’s costs.
The court assumes that both parents have equal shared parental responsibility when it is making parenting orders. Equal shared parental responsibility means that parents have to make a genuine effort to make decisions together about major long-term issues affecting the children.They do not have to consult each other about other decisions, for example, what the child eats or wears.
The court does not assume equal shared parental responsibility if there is child abuse or family violence. This includes child abuse or family violence towards a child who is a member of the parent’s family. For example, a half or step-sibling. The court will also not make this assumption if it is not in the best interests of the children to do so.
You need to say in your affidavit if you:
Do not want equal shared parental responsibility. You must have reasons to ask this. You should outline this in your affidavit.
Want all long-term issues to be decided together.
Want separate power for some decisions (except for major long-term decisions). For example,‘the father has sole parental responsibility for the religious upbringing of the children but that the parties otherwise have equal shared parental responsibility for the children’.
Parenting time arrangements
If the court finds that there is equal shared parental responsibility, it must then look at whether the children spending equal time with each parent is in the best interests of the children and practicable. If it is not, the court must then look at whether it is in the children’s best interests and practicable for them to spend substantial and significant time with each parent.
Substantial and significant time has a legal meaning. It includes weekdays, weekends, holidays, being involved in the children’s daily routines and spending special days or events together. If this is found to be not practical or not in the best interests of the children, the court considers other parenting time arrangements. Say in your affidavit how much parenting time you would like for you and the other party. This may be equal time, substantial and significant time or another arrangement. Say why this is in the best interests of the child and practical.
Do this by referring to the factors in Section 60CC that are relevant to your case.
Changing a parenting order, communicating and handling disagreements
You can say in your affidavit how you and your ex-partner can change a parenting order if you ever need to. This may include:
- applying to the court to make a change
- going to family dispute resolution if you are having disagreements about the order
making a parenting plan to change the order. You should include the steps you would like both parties to take in your affidavit to change a parenting order or handle disagreements. If you do not want your parenting order to be changed later by a parenting plan, include this in your affidavit. You must, however, include exceptional circumstances to support this.
This is where you say what you want the court to agree to and include any other factors relevant to the care of the children. You need to cover the following things:
Housing –where the children would live, what type of home it is and who else would live there.
Time with other parent –if you want an order that the child live with you, what time and/or communication do you propose that each child has with the other party? Include travel arrangements and handover arrangements if relevant. If you propose that any time or communication be supervised, name a supervisor and explain that person’s relationship to the children. Say if the supervisor has agreed to do this.
Think about what will happen if you are not successful in your application for the child to live with you. Or what will happen if you do not want an order for the child to live with you. What are your proposals for each child to spend time with and/or communicate with you? Include travel and handover arrangements.
Supervision –the kindergarten or school the children will go to, and any other people besides
the parents who would be involved in supervision.
Financial support –what financial resources you can use to support the children. For example, money from work, benefits or child support.
Health –health issues of the parties or the children and any treatment which may be needed. To show this, write down any treatment, counselling or medication, including from medical practitioners, school counsellors, therapists, social workers, child psychologists or child psychiatrists for the last two years and why future treatment may be needed.
Education –details of the pre-school, kindergarten, school and day care each child will go to.
Individual needs of the child –special characteristics or needs of the children. For example, a need to maintain a connection with any ethnic, racial or religious lifestyle, culture or tradition.
Care of the children –any factors that affect your or the other party’s ability to provide a safe physical and emotional environment (including any child abuse or family violence). Include any involvement by a State welfare department or police with the child. If the parties or their partners have other children under the age of 18, do the same.
Other issues –give any other relevant facts in support of the orders you seek. Consider the factors set out in Section 60CC (2) and (3) of the Act. You must address all of the factors in this section that are relevant to your application.
An affidavit in a property application includes the following issues:
- the length of the relationship
- what you owned when you started the relationship
- direct and indirect financial contributions each party made to the marriage.
- savings, gifts and inheritances, and how these were used
- how much money you will earn in the future• any child support payments being made
- the list of factors under Section 75(2) of the Family Law Act
- any problems such as gambling or family violence that may have affected how much money the parties earned
This article provides basic information only and is not a substitute for a professional or legal advice . It is prudent to obtain legal advice from a lawyer. family lawyers Marrickville, family lawyers Newtown, family lawyers Balmain