How to Draft a Family Law Affidavit: for Self-Represented Litigants
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 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 a family law affidavit. It is tailored specifically 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 Federal Circuit and Family Court of Australia, you must file an affidavit with any application or response that contains an application for interim 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 can find this form here: https://www.fcfcoa.gov.au/fl/forms/affidavit
What should be included?
When you draft a family law affidavit, you need to consider your audience. This is the judicial officer who will make orders on the application before the court issue. Whoever this is will approach the complicated facts of your family situation with a blank mind about what should happen. So you will need to know how to draft a family law affidavit clearly and logically to help that person 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 decide how to draft your family law affidavit unless you understand this. This requires some understanding of the family law as it applies to your case.
For a parenting matter, the relevant law will be about the ‘best interests’ of the child(ren). But not just in general terms. You need to understand exactly 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’ 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’ 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 court will use to decide it, you really should do more research in the family court website, read the law itself, or seek legal advice before starting to draft your family law affidavit.
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 should try to avoid informal or conversational forms of speech unless you are reporting actual conversation in which that type of speech was used. Do not try to be funny. Do try to sound factual and not angry.
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 a family law 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.”
Don’t write:
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, words 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 judicial officers 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).
What should not go in an affidavit?
When considering how to draft a family law affidavit, leave out your opinions or your feelings about the other parties’ actions. It is your evidence of facts, not of your beliefs or views that matters. (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 judicial officer can do this all by themselves! Just provide the factual material that the court needs to apply the law to.
And again, try to leave 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 and Family 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 in 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.
How long should the affidavit be?
An affidavit should be as short as it can be to address the relevant issues. That said, most affidavits run near to the maximum allowable length. Although different rules apply for the final trial affidavit, for applications and responses throughout the proceeding these are:
- 25 pages in length for each affidavit and no more than 10 annexure (if filed in Division 1 of the FCFCOA) or
- 10 pages in length for each affidavit and no more than five annexures (if filed in Division 2 of the Court).
While annexures may not count towards the page limit, the court still expects all material to be relevant and concise. Excessive or unnecessary annexures might be viewed unfavorably by the court, even if they don’t technically breach the page limit rule
Conclusion
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. Before you start to draft your family law affidavit, do your best in the first instance to understand what elements of the law relate to your case. Ask yourself, over and over: What do you need to prove? For example, for a parenting matter, which of the best interests factors are the most relevant to the orders you are seeking? For a property matter, you will be wanting to explain a past contributions and possibly future financial need. Then consider–what facts, what particular parts of the story of the whole of my personal circumstances relate to those factors? Then make your first draft.
Tribe provides extremely cost-effective affidavit drafting services to help you to turn your affidavit draft into a strategically powerful legal document.. Book now to have a free, no-obligation chat with one of our senior solicitors.