What do you need to know about filing an affidavit?

You may have heard the terms “affidavit” or “filing evidence using an affidavit”. If you are not familiar with court proceedings you might not know what an affidavit is, or how to prepare one for your case. In this article we will aim to explain what an affidavit is and also provide information on when you need to file one; what should you include and what may not be included in your affidavit?

What is an affidavit?

An affidavit is a written statement by a party to a case that can be used as evidence in court proceedings. It sets out the facts as the writer remembers them. Whatever evidence you want the court to hear about in your case must be included in your affidavit. Witnesses to your case may also need to prepare an affidavit.

Why should you file an affidavit?

It is the main way that you will present your side of the case to the court. It is your statement of the facts that you will use to present your evidence and prove your case.

Take note: If you want to file an affidavit in court to support your case, you must serve the affidavit on all the parties involved in your case. If an independent children’s lawyer was appointed, he/she also needs a copy.

When will you file an affidavit?

It depends on which Court hears your case.

In the Family Court, you need to file your affidavit with an interim application or response; or when ordered by the Court to do so.

In the Federal Circuit Court, you need to file your affidavit with your application or response, for both interim and final orders, and when ordered by the Court to do so.

Is there a standard form that you can use?

Both the Family and the Federal Circuit Court have blank affidavit forms, which can be used by either party to the proceedings. Make sure that you use the correct form for the Court where your matter is heard. Forms can be obtained at your nearest family law registry, or online at the relevant court’s website.

Can you prepare your affidavit?

You can prepare your affidavit, but it is not easy. It might be difficult to decide what to include or exclude from the affidavit. You also need to comply with certain requirements for the affidavit to be admissible in court. If you are unsure about preparing your affidavit, rather seek legal advice from:

• A legal Aid office
• Your community legal centre, or
• A Private lawyer

The staff at the Court can assist with general advice about the forms and the process, but they cannot give legal advice.

Statements and evidence by other witnesses

If you want to introduce evidence by a third party (a family member, a friend, or a professional) to the court, that person will need to prepare a separate affidavit, which you will have to file on their behalf. The only evidence that is relevant to your case should be included in an affidavit.

Take note: A child under the age of 18 years, should not prepare an affidavit to support your case unless the court orders such an affidavit.

Is there a special way to write an affidavit?

It is a good idea to use headings for separate sections and to set out the content in paragraphs that are numbered. If possible, cover only one topic per paragraph. For instance, do not deal with property matters in the paragraph with the heading, “Arrangements for the children”.

In the Federal Circuit Court, the affidavit may be typed or printed, on one side of the page. In the Family Court, it should be typed.

What should you include in an affidavit?

You are either applying for or responding to an application for a specific order/s; your affidavit should support your application or response for such an order. You should include the relevant facts that you want the court to hear and to consider when deciding on the application or response, but try and leave out things that are not relevant to the specific order you are seeking from the court.

Your affidavit need not be lengthy. The length will be determined by the complexity of your case. You only need to state the facts that you are relying on as evidence to support your case.

What should you not include in an affidavit?

As stated before, an affidavit is a statement of facts. It is also your facts. This firstly means that your affidavit should be based on facts, not your subjective opinions or beliefs. Just state the facts. The only exception is affidavits by expert witnesses; they may be required to give their expert opinion to the court.

Secondly, your facts imply that you should avoid including “facts” that are based on information received from someone else. This is known as hearsay evidence, and should not be included in your affidavit. There are exceptions to this rule. If you need to rely on such evidence, get legal assistance to prepare your affidavit. Your lawyer will know what is admissible hearsay evidence.

Section 131 of the Evidence Act 1995 deals with “evidence” produced during an attempt to negotiate a settlement of your dispute. Nothing said, or documents produced during that process is admissible as evidence unless specifically mentioned as an exception in section 131.

It is recommended that you seek legal advice from a family lawyer if you are unsure what to include in your affidavit.

Can you choose rather give oral evidence in court?

Giving your account in court is limited to exceptional circumstances. In most cases, most of the evidence is presented by affidavit. All the parties know beforehand what the evidence before the court is, and the case can run smoothly and efficiently. There are no “surprises”.

Can I include other documents in my affidavit?

Yes, if you refer to a document, you must attach a copy of such document to the back of your affidavit. This is called an annexure.

If you need to attach more than one annexure, you need to reference these annexures consecutively by number or letter. For example, you will have Annexures 1, 2 and 3; or A, B and C. You also need to number all the pages consecutively, from page 1 of the first annexure to the last page of the last annexure. This makes referencing during the case easier.

Annexures may include a child’s school report, a contract of sale, or a lease agreement.

Each annexure must be identified as the document referred to in the affidavit. This is achieved by including a statement, signed by the same authorized person signing the affidavit, reading as follows:

This is the document referred to as Annexure (insert reference number or letter) in the affidavit of (insert deponent’s name), sworn/affirmed at (insert place) on (insert date) before me (authorized person to sign and provide name and qualification).

The statement must be signed at the same time as the affidavit.

How do you end/sign your affidavit?

Before signing your affidavit, you need to have a qualified witness present. The authorized person may be a lawyer, a Justice of the Peace, or, if you are overseas, a Notary Public or Australian Diplomatic/Consulate Officer.

The last page of the affidavit must include the following details:

• The full name of the person making the affidavit, and his/her signature.
• Whether the affidavit is sworn or affirmed.
• The date and place the affidavit is signed.
• The full name and occupation of the authorized person, and his/her signature.

This section of the affidavit is referred to as a jurat.

The person making the affidavit (the deponent) must also sign the bottom of each page in the presence of the authorized person (the witness).

Can you make alterations to the affidavit?

Yes, but the deponent and the authorized witness must initial each alteration such as corrections, additions or cross-outs.

What does it mean to have your statement sworn or affirmed?

If you have your statement sworn, you will hold a bible or other religious text while solemnly promising to tell the truth.

If this is against your religious beliefs, or you are not religious, you may take an affirmation. You will then affirm that the statement you have made and are now signing is the truth.

Do you need legal advice?

The content and form of your affidavit can be very important in presenting your evidence and succeeding with your application or response. You may need the advice of a lawyer with experience in drawing up affidavits.