An affidavit is a written statement setting out a person's evidence, that is, information that tends to prove or disprove a fact. A person may only give evidence in the Family Court by way of affidavit, unless otherwise ordered by the Court.
In most Family Law Court proceedings all evidence (evidence in chief and other evidence in support of the orders sought) is given on affidavit unless the court directs otherwise.
Some evidence must be given orally in parenting disputes that proceed as ‘less adversarial trials’ (LAT) under Division 12A of the Family Law Act at the first day of hearing. This forms part of the evidence in the proceedings. However, evidence is given by affidavit on final hearing as each party is well aware of the what facts the other is relying upon.
An affidavit must comply with Rules 15.08, 15.09 and 24.01 of the Family Law Rules 2004.
1. The affidavit must be typed. Hand printing affidavits is only acceptable under urgent circumstances such as immediate threat to the child. Further, when hand printing affidavits, your handwriting must be legible and you must use black or blue ink. If the handwriting is illegible, the affidavit can be rejected. The Family Court website has downloadable affidavit forms that you can use.
2. The affidavit must be divided into consecutively numbered paragraphs with one subject matter for each paragraph. Limit the length of the paragraphs to 6 lines. Express dates, amounts and numbers with figures and not words. Example, you should write “30 days” instead of “thirty days.”
3. In the event that there is insufficient space on the form, the affidavit must be typed on a blank A4 paper with each page numbered ad signed at the bottom by both the party swearing the affidavit and the witness.
4. Attachments must be attached to the back of the affidavit and marked with an annexure note. The page numbering of the attachments must be consecutive. In the event that there is more than one attachment, an index must be included listing the attachments, its page numbers and short description. Both the annexure note and the affidavit should be signed on the same date by the person who is witnessing the affidavit.
5. The affidavit must contain all the needed evidence of your case. The judge will only be able to take accounts facts that are in the affidavit and sworn by you and your witness. Likewise, if there is a specific order to limit your evidence on specific issues, then you have to abide and refrain from adding evidence on other issues.
6. Affidavits must only contain facts. Arguments and comments should be excluded in affidavits.
7. There must be a witness when you affix your signature on the affidavit such as a Justice of the Peace, a lawyer or a Notary Public.
8. There must be at least two good quality photocopies of the affidavit. More copies will be required if there is more than one other party or an independent children’s lawyer.
9. The initials by all parties swearing the affidavit and the person serving as the witness should be affixed on any alterations or changes in the affidavit.