Affidavits are arguably the most crucial documents in a family law case. It is in these documents that you put your story, your version of the real-life facts, to the court. The court has no crystal ball, no capacity to know ‘the truth’. All it has are the words of the parties to the case, and those of their witnesses. These words, these stories, are provided to the court principally in the form of affidavits, as you and the other witnesses will likely never have the opportunity to sit in a witness box and actually speak. This article provides basic pointers about how to draft an affidavit for family law issues. It is tailored to guide and assist self-represented litigants to more effectively represent themselves in a family law dispute. You can use it to make at least a good first pass at the draft that will eventually be filed with your Initiating Application or Response.
What is an affidavit?
An affidavit is a written statement of facts, the contents of which are sworn to be true. The court uses affidavits to determine the facts of the case. Most of the evidence in a family law case is received by the court in the form of an affidavit.
Who makes an affidavit?
The person making an affidavit is called ‘the deponent’. A deponent does not have to be a party to the case. There may be other people who can help you to prove facts that will support your application for the court to make orders. These will be your ‘witnesses’. If there are witnesses to support your case, each of those witnesses should make an affidavit individually.
When do I file an affidavit?
In the Family Court, you must file an affidavit only if you have applied for interim orders, or are responding to application for these, or if you’ve been directed to file one by the Court.
In the Federal Circuit Court, you must file an affidavit with any application or response, for both interim and final orders, or if you’ve been directed to file one by the Court.
Both courts have blank affidavit form which can be used by applicants and respondents. You should use the form that is relevant to the Court handling your matter. You can find these forms at www.familycourt.gov.au and at www.federalcircuitcourt.gov.au.
What should be included?
When drafting an affidavit, you need to consider your audience. This, eventually, will be the judge who decides your case. The court approaches the complicated facts of your family situation with a blank mind about what should happen. Your affidavit will need to be drafted clearly and logically to help the judge understand how the facts of your situation relate to the specific elements of the law that he or she must apply when deciding what orders to make.
So, although the affidavit should present a cohesive story, it should contain only relevant facts. These are not everything about your background or your family or relationship but only what is needed to make sense about the issues in dispute. The most important question is: what do I need to prove? You can’t know what to put in your affidavit unless you understand this. This requires some understanding of the family law as it applies to your case.
For a parenting matter, this will be about the ‘best interests’ of the child(ren). But not just in general terms. You need to understand what factors the court must consider in deciding the best interests. See Tribe’s ‘Guide to Going to Family Court as a Self-Represented Litigant’ [link] for a brief description of these. There will be some that apply directly to your case. These are the matters that you address with facts in your affidavit.
For a property matter, you should have some idea about the ‘four step process’ that the court uses to decide a fair and proper property split. See Tribe’s ‘Guide to How property settlement works’ [link] for a brief description of this.
If you don’t have at least a basic understanding the family law as it relates to your case, the law that the judge will use to decide it, you must do more research in the family court websites, read the law itself, or seek legal advice before starting.
How should an affidavit be written?
Statement in affidavits should be written in the first person (for example, use the pronoun “I”) as you are giving evidence of what you saw, heard, did or experienced (tasted, smelt, touched and felt). You can also include statements of your beliefs or your feelings if these are relevant and can explain what you did.
You should try to use good grammar and formal expression, including whole sentences (not dot-points). You shouldtry to avoid informal or conversational forms of speech unless you are reporting actual conversation in which that type of speech was used.
It is important to re-state any conversation in your affidavit in exactly the words that you remember were said, even if there are swear words or other everyday speech. Real dialogue is an important part of an affidavit. The court wants to see those actual words, not your interpretation or summary of what was said. Try to quote exactly, using quotation marks. For example, write:
Then he said: “I just took the dog out for a quick walk.”
Then he made out that he’d only left the house briefly to take the dog for a walk.
If you are not sure, or can’t remember the exact words, you can write:
Then he said, to the effect: “I just took the dog out for a quick walk.” Or:
Then he said: “I just took the dog out for a quick walk” or words to that effect.
What format is expected?
An affidavit should be written in short numbered paragraphs. Each paragraph should address one event or subject. Many judges prefer that you provide sub-headings between the paragraphs, grouping them in some logical way—either to better describe the (relevant!) bits of story, or to address specific aspects of the issues that are at core of your dispute. Remember, though, that the affidavit should make sense as a whole, so try to roll-out events and issues in roughly chronological order (from oldest to newest).
There may be documents available to support statements you make in the affidavit. Whether or not these need to be attached to your affidavit depends on which court is hearing your matter. (See below for more details about this.)
What should not go in an affidavit?
An affidavit should not contain your opinions or your feelings about the other parties’ actions. It is your evidence of facts, not of your beliefs or views. (There are some exceptions to this but this is the basic rule.)
An affidavit also should not include your opinions on the law and how it applies in the case. You don’t need to point to the law – the judge can do this all by themselves! Just provide the factual material that the court needs to apply the law to.
And again, keep out material that is not relevant to the issues in dispute. This includes any material that only has the purpose of trying to make the other party look bad. The courts are very sensitive to this.
Annexure rules in the Federal Circuit Court
Documents that you want to include as annexures to affidavits filed in the Federal Circuit Court should be attached to the back of the affidavit. If there is more than one annexure, each document should be referred to by a number or letter, such as Annexure 1,2,3 or A,B,C.
If you will be attaching documents, it is important to include, in the body of the affidavit, a short description of what kind of documents are attached. For example:
‘Annexed and marked ‘A’ is a copy of the receipt for my purchase of the boat in 1999.’
You should also state why the annexure matters to your case, why it is that you are attaching it, how it is relevant to the issues in dispute.
Each annexure will need to be witnessed by the same person who is witnessing your affidavit. Make a place for them to do this by typing or writing a statement such as this on each annexure:
This is the document referred to as Annexure A in the affidavit of Mary Smith, sworn at……………….on ………….. before me ……………..
You can squeeze this statement can go at the top, bottom or even up the sides of the first page of each annexure.
Annexures don’t need to be originals. You can make a copy of important originals and write this statement on these.
In the Family Court
In the Family Court, a document that is to be used in conjunction with an affidavit and tendered as evidence, must be identified in the affidavit, but not as referred to annexures. Also, they must not be attached to the affidavit or separately filed when you file the affidavit. You will have an opportunity to put them to the court at a later point in proceedings. But you do need to serve those identified documents on the other party when you serve the affidavit after you file it.
How long should the affidavit be?
An affidavit should be as short as it can be to address the relevant issues. Courts can be very critical of overlong affidavits.
Affidavits in applications for interim orders in the Federal Circuit Court must not be more than 10 pages in length (body only) or include more than five annexures. Most affidavits reach at least near to the maximum length.
An affidavit should preferably be typed with double spacing and a 12-point font, but the court will also accept a clear handwritten affidavit.
Affidavits are so important to your case that it is really is worth going to some trouble to make sure they are doing the work you need them to do. Do your best in the first instance to research the law (or get some advice), and then make a first pass at your draft.
Tribe provides cost-effective affidavit drafting services [link] to help you craft them into a strategically effective legal document.
For more assistance see the Family Court Fact Sheet on preparing an affidavit.