Author

Alan Weiss

17th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.

Your affidavit should include all the evidence you use at the hearing.

An affidavit forms part of the evidence of a party in family courts. The affidavit must follow certain rules and form to be admitted in court.

An affidavit is a statement of facts that is used as part of a party’s evidence before the Family Court and Federal Circuit Court. Under Reg 15.05 of the Family Law Rules 2004 there is no general right to file affidavits.

Family law court proceedings do not usually require oral evidence

Family law court proceedings do not usually require oral evidence, thus, affidavits are allowed. This means that a party does not have to testify orally in court unless the Court orders or allows it. The use of an affidavit is provided in Reg 15.05 to Reg 15.15 of the Family Law Rules 2004.

Forms are available with the Family Court and Federal Circuit Court. All that a party needs to do is fill out the forms by hand or typewritten. However, a party has the option of making their own affidavits. It is advised for a party to hire the services of a lawyer whenever making his own affidavit to ensure regularity in the execution and admissibility in court.

The affidavit must contain only facts which are within the personal knowledge of the affiant. Views, opinions and beliefs are excluded in an affidavit unless the affiant is an expert witness providing expert evidence.

For example, a doctor is allowed to state in his affidavit his medical opinion but if the affiant is an ordinary witness or the applicant/respondent himself then he must stick only to a statement of facts.

There are instances when hearsay evidence is allowed which can get tricky. Again, it is advisable to get the services of a lawyer when the deponent wants to include hearsay evidence in his affidavit.

The grounds for inadmissibility of a statement in an affidavit are provided under Reg 15.13. A material in the affidavit may be objected to and stricken out for being inadmissible, unnecessary, irrelevant, unreasonably long, scandalous, argumentative or if it sets out the opinion of a person who is not qualified to give it.

The party who filed the inadmissible affidavit, or which contains an inadmissible statement may be made to pay costs. Not only that, an inadmissible affidavit may be detrimental to the case of the deponent.

It is important for an affidavit to be structured in an orderly form. The Court will be relying on the affidavit as the testimony of the applicant and his witnesses in the same way that the affidavit will also be the testimony of the respondent and his witnesses.

The affidavit must support the case of the applicant and his prayer while it must set forth the defence of the respondent to the charge against him. The use of an affidavit is meant to speed up proceedings before the court. 

An affidavit that is brief but straight to the point and orderly will be to the advantage of the party submitting it since it will be easier for the Court to appreciate the evidence before him.

Reg 15.08 prescribes the form of an affidavit. It must be numbered consecutively per paragraph. Each paragraph of the affidavit must tackle only one distinct topic, reserving other topics of the same subject matter to other paragraphs. The first page must contain a statement of the case file number, the complete name of the person in whose behalf an affidavit is executed and the complete name of the affiant.

At the end of the affidavit must be a statement of the date and place of execution of the affidavit, complete name of the person who prepared the affidavit and the names of the witnesses before whom the affidavit was executed. The affiant must affix his signature on top of his name for without it the affidavit would just be a mere scrap of paper.

There are instances when the affidavit will be mentioning certain documents. These documents must be attached to the affidavit and marked as annexure. The document attached must bear a statement that it is the same document that is mentioned in the affidavit. This statement must be sworn to and signed in front of the same witness of the affidavit.

Finally, an affidavit must be confined to the material issues in dispute and contain only admissible evidence. The affidavit must be sworn and served on the other party.

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