When it comes to Judges making decisions, one of the key things that is relied upon is an Applicant’s (or Defendant’s) affidavit.

The word “Affidavit” is Latin for ‘declared under oath’ and the person who writes the affidavit and swears an oath that it is truthful is called the Deponent.
Affidavits have been around for hundreds of years and they’re very important if your matter is going before the court because they are a statement of the facts and evidence in your case which you wish to show the judge.
So what is this thing called an affidavit, and why is it so damn important when it comes to family law court battles?
When you start an application to the court to have them hear your matter (an ‘Initiating Application In A Case’), your application in most cases must be accompanied with an affidavit.
Whether your seeking parenting orders or financial orders from the court, this affidavit is a crucial document as it allows you to set out the evidence to support the orders you require. It’s a document the judge will want to take a close look at, so if your self representing you need to make sure it’s not a dog’s breakfast or an endless rant. Time and time again I have seen poor affidavits thrown out by the court because they failed to address the issues or orders requested AND provide clear unbiased evidence to support them.
Indeed, some long winded affidavits can put an old telephone book to shame.
Always remember that the courts are busy and judges don’t need to read about every twist and turn in your family dramas or peruse every nasty sms or email that the two of you have sent each other over the last year. Hallelujah!

Preparing An Affidavit
It’s critical that your affidavit looks well presented and reads well.
You don’t have to write like Bill Shakespeare, in fact it’s best to keep what you need to say in simple English. There are also some really easy ways to structure an affidavit well.
Although the Federal Circuit Court does allow for affidavits to be hand written, please don’t. Always ensure that they are typed.
By the way, in the Family Court, affidavits must always be typed.

• Type on only one side of an A4 page
• Have enough space between the lines so that the affidavit is easy to read.
• Use a standard font such as Verdana, Arial or Times New Roman.
• No crazy fonts and no bolding or USE OF CAPS in your affidavits.
• The size of the font should be no smaller than 11 point and no bigger than 13. So 12 point is perfect!
• The affidavit should be divided into paragraphs and…
• The paragraphs must be numbered.
• The pages must also be numbered in the top right hand corner.
• Each paragraph should be short and deal with one issue only.
• Each paragraph follows on logically from the previous one.
• And importantly…be as brief as possible
• A good tip to draw the Judge’s attention to the evidence and facts you are presenting is by using headings that separate the issues in your affidavit. For example, a subheading might be ‘Arrangements for the children after separation’, ‘Incidents dealing with domestic violence’ or ‘Property accrued during the relationship’. [These headings shouldn’t be numbered]
  
  

Presenting Your Evidence
I’ll keep this brief as you should too and say one thing, keep it factual and don’t embellish the facts with an interpretation that puts you in a good light or attempts to diss your former partner or spouse. I can assure you that most judges will see this coming a mile off!
The use of humour, despite being sometimes needed in the court, is again a no no in any affidavit.

Presenting Your Children’s Opinions
Unless a court orders otherwise, a child (under the age of 18 years) should not prepare an affidavit to support your case.
However, if your children have said things to you that support your orders or can give the judge a better understanding of what is happening, you should include these in your affidavit.

Again, it must be relevant to any orders you are seeking. Always ensure you frame children’s comments in a  factual way. Where you are not 100% sure what was said use the expression ‘words to the effect of’.

For example, here is a good way of doing this:
After returning from her visit with her mother on Friday May 12 2019, my daughter stated words to the effect of “I am frightened of mummy because she screams at me when I make a mistake”. 
And this is bad:
My daughter looks really upset when she returns from visits with her mum. She screams at her when she doesn’t do the right thing and scares her to death. It’s so typical of her. She is mentally unsound and I don’t want my daughter going near her anymore.

Apart from it being an attempt at character assassination which won’t help any Applicant, the Court just wants to know what’s going on and how it might support the orders you’re asking for.

Affidavits By Other Witnesses
If you are relying on evidence from a third party to support your case, such as a family member, friend or professional, you will need to put that person’s evidence in a separate affidavit.
Make sure that their evidence is both truthful and 100% relevant to your case before you file any additional affidavits. These supporting affidavits also need to be signed by the person giving the evidence and witnessed by a JP, lawyer, local police sergeant or Clerk of the Court.
Don’t forget affidavits are a form of evidence, there are criminal consequences for making false statements.

Attaching documents

Federal Circuit Court
If you refer to a document in your affidavit, you must attach a copy of it to the back of your affidavit. 
Examples of an annexure could be a copy of sms messages/emails, a contract of sale, or a child’s school or medical report.
If there is more than one annexure, you need to refer to each one by a number or letter; for example, Annexure 1 or Annexure A.

You also need to number each page of your annexures so the judge can easily follow your evidence. For example if one annexture deals with emails and there are 5 pages of emails between you and your partner that are relevant to your orders then you need to number each page. On this point, if you think a Judge is keen to read hundreds of emails and sms messages, think again. Only put the most relevant and important ones in.

Each annexure must have a cover page signed by the authorised person identifying the annexure as the document referred to in the affidavit. Again this would be a JP, lawyer, police officer or court clerk.
The wording of the statement is:

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

The statement must be signed at the same time as the affidavit and by the same authorised person.

Note: In interim proceedings, unless express leave is granted by the Judge into whose docket the matter has been allocated, affidavit material in support of an interim application must not exceed 10 pages in length for each affidavit or contain more than 5 annexures. 

Family Court
In the Family Court, a document that is to be used in conjunction with an affidavit and tendered in evidence in a court proceeding, must be identified in the affidavit but must not be attached to (or annexed to) the affidavit, or filed as an exhibit to the affidavit.
The document/s referred to in the affidavit must be served with the affidavit on the other party (or parties) after filing. The document/s must then be tendered in evidence at the court event when the relevant affidavit is relied upon or as required.

OK Let’s Have A Crack!
Here’s a (very brief) partial example of how your affidavit should flow:

1. I am the Applicant mother in this matter.
2. I was born on the 2nd of May 1986.
3. The Respondent father John Swaney was born on the 19th of May 1976.
4. I began a relationship with the the Respondent in early 2010. 
5. The Respondent and I were married on the 3rd of January 2011.
6. We separated on the 5th of July 2018.
7. The respondent and I have two children. Our son Max Louis Swaney was born on the 22nd of December 2012 and our daughter Eliza Susie Swaney was born on the 4th of July 2014.    
8. I am presently the primary carer of both the children.
9. The Respondent sees his children once a week.
10. He picks up the children on each Saturday for 5 hours between 12 noon and 5pm.
11. The children are normally taken back to the Respondent’s home in North Smithton and sometimes to a local fun park in Woopville.
    [Here, you might insert a subheading]
    The Alleged Assault By The Respondent
12. For the visit that occurred on Saturday 11th December 2018, after the children were returned my daughter said words to the effect of, “Daddy hit me on the legs very hard when I cried”.  I immediately looked at her legs and noticed a red welt mark in the shape of what could be a belt mark on the back of her right leg. 
13. I took her to the doctor later that evening and he x-rayed the injury and prescribed some pain relief cream and applied a bandage.
14. He also gave an assessment of the injury. Please refer to Annexure 1 for this assessment.
15. Since this injury occurred, my daughter has had trouble sleeping and is very anxious before her father picks her up on the Saturday

The affidavit would then continue on to address how the other child feels about spending time with his father; Mum’s concerns as the Applicant; alternate propositions for how time could be spent in the future; and what mum wants in terms of orders from the court.

Ok so I hope you can see the way language should be used.
♦ It is factual;
♦ Sets out a kind of time line with relevant commentary;
♦ Is not emotive or denigrates the other party.
Importantly, it is not long winded… but that doesn’t mean you can’t offer more depth where it is needed.

So remember that your affidavit is your evidence, a statement of the facts.
What it isn’t is an opportunity for you to have a rant and present a ‘soap opera’ to the court.
When drafting your affidavit keep in mind that the court only wants what is in the best interests of the kids. This of course usually means BOTH parents spending substantial time with the children.
Call a spade a spade where necessary, but if the Respondent has good qualities, mention them as well. It shows the Judge you are trying to be fair minded.
And if your still having affidavit heartaches, drop us a line at admin@thelegaleagle.com.au and one of our experienced legal drafters [for a small fee] can get it looking spot on.
 

For more family law answers visit our main page… HERE

For many years the windmills of my mind turned very slowly when it came to preparing a will. Partially deluded about my own mortality, it would have seemed rather distasteful pondering over who I should divvy up the cappuccino machine and my 15 year old Camry to. Thank heavens common sense caught up with me… before any random bus ran me over.
Yet I’m no great oddity when it comes to delaying the scribing of one’s will. Latest statistics show that 45% of the adult population in Australia still haven’t bothered to testate.

For most of us that do see the light, we worry about fairly similar things. Naturally, our attention turns to our spouse or partner; children; close relatives and friends and how to best to take care of them. Our wills become that final stated endeavour of our benevolence and love for those we cherish.
Of course there are those outrageous exceptions that defy belief with their eccentricity, meanness or just plain craziness.
Here are my all time favourites:

William Shakespeare
A reading of the Bard’s will suggests a rather generous fellow. His daughters Judith and Susanna, granddaughter Elizabeth, sister Joan and nephews are all left generous gifts of cash. Numerous friends are left smaller amounts of money so they may buy rings. He even left his godson William Walker 20 shillings in gold.  All the rest of his goods and household stuff he left to my son-in-law, John Hall and his daughter Susanna.
However, snubbing his wife Anne Hathaway from beyond the grave, he leaves her the second best bed and the furniture.
What a cad indeed! It’s a shame Anne couldn’t claim under the Family Provision Act that Will’s will failed to make ‘reasonable financial provision’ for her, and ask a court to award her more.

Leona Helmsley
Billionaire hotelier Leona Helmsley was renowned throughout her life for her penny pinching and mean spiritedness to family, staff and friends. Despite an earlier draft of her will leaving her fortune to the poor, the final will, amounting to $8 billion dollars, was left in trust for the care and welfare of dogs.
Her own dog, a 9 year old Maltese named ‘Trouble’ was left $12 million. The poor pooch’s inheritance was later cut to $2 million on appeal. Apparently Trouble’s lap of luxury was often interrupted as the executors had to hide him to avoid kidnap threats!
In keeping with her meanness, Ms Helmsley’s grandchildren were either cut out of the will  or ordered to visit their father’s grave annually in order to inherit their share.
Provision was made in the will for them to be docked of their allowance if they missed a visit.

Lang Hancock
Iron ore magnate Lang Hancock’s passing heralded one of the most acrimonious fights over an estate that Australia has ever seen. In one corner was Mr Hancock’s second wife of 6 years Rose Porteous, and in the other his daughter Gina Rinehart.
An 11 year battle ensued over the estate with Rose claiming she had been denied the valuable iron ore royalty rights Lang had owned, after a last-minute change to his will.  Gina in reply claimed the $50 million worth of assets given to Rose by her father had been handed over under duress.
There was an inquest, sought by Gina, to investigate Lang’s death because she believed her father’s end was a result of foul play by Rose. However it quickly degenerated into a circus with WA Attorney-General Jim McGinty complaining it was an abuse of public resources and had come about only because Ms Rinehart and Ms Porteous had so much money.
The inquest was dominated by claims and accusations that Rose had literally nagged Hancock to death and that Gina was paying big money for her witnesses.
Despite this, the coroner forged ahead and found that Hancock had died of natural causes which was consistent with the findings of the original autopsy.
The pair finally agreed to a truce, reaching a secret settlement that saw all legal actions dropped. Rose kept her assets and Gina retained the enormous iron ore royalties.

Robert Louis Stevenson
Robert Louis Stevenson, author of classics Treasure Island and The Strange Case of Dr. Jekyll and Mr. Hyde, throughout his life cherished his close friend, Annie Ide. Ide’s was born on Christmas day and had often complained to Stevenson about the misfortune of having a December 25th birthday. I imagine no double prezies was the jist of her sulk.
Stevenson was so sympathetic to this, that he gave her his own birthday when he died.
In his will Stevenson bequest that the “rights and privileges in the thirteenth day of November, formerly [his] birthday are now, hereby, and henceforth, the birthday of the said Annie H. Ide, to have, hold, exercise, and enjoy the same in the customary manner, by the sporting of fine raiment, eating of rich meats, and receipt of gifts, compliments, and copies of verse, according to the manner of our ancestors.”
It’s not known whether Annie took him up on this odd ‘gift’.

Heinrich “Henry” Heine
German poet Heinrich “Henry” Heine left his estate to his wife Matilda on the condition that she remarry, so that “there will be at least one man to regret my death”. His last will and testament providing a last chance to insult his wife one final time.
But in essence this would backfire today. Because Henry left no children, Matilda would under law inherit Henry’s whole estate, absolutely and without the condition of  an ‘insult clause’.
An unconditional touche you could say!

The short and the long of it
Frederica Cook obviously had a lot of time on her hands. Her will was 1066 pages long and occupied four leather bound folios. Aside from the pages containing the introductory clauses, the will also listed a priced inventory of laces, jewellery, furs, embroideries, dressing bags and objets d’art. A large number of these articles are further explained in the endless footnotes.
The will was in Mrs Cook’s own handwriting and among the many, many things mentioned in the document, the one that caught my eye was  that her age not be inscribed on her tombstone!
Mrs Cook would have been shocked to find that the shortest will ever recorded amounted to a measly 3 words, “All to mother”. However, this was challenged when the deceased’s wife and mother both claimed to be ‘mother’.
Dear oh dear!

Fredric Baur
Baur was a chemist who invented among other things Pringles potato chips and it’s iconic can.  He was clearly a touch anally retentive and orderly in needing his chippies stacked neatly in a column.But aside from this, he also demanded in his will that he be cremated and buried in a Pringles can. And in 2008, when he passed away, his children happily obliged.



Baur’s eldest son Larry told Time Magazine that “When my dad first raised the burial idea in the 1980s, I chuckled about it,”. However his son quickly worked out that dad was serious. On the day of his cremation, the sons stopped at a 7/11 for the ‘burial can’ of Pringles. 

They debated what flavour to use but the answer to Larry was obvious, “we must use the original”.

Our collective jaws may drop at crazy, mean or eccentric wills, but a person’s will is after all their final wishes, whether heartfelt or mean of spirit. There are naturally stop gaps under family provision when things become ridiculously unfair.
Nevertheless, Sir Owen Dixon did note that it was never intended, by legislation, that the freedom of testamentary disposition should be so encroached upon that a testator’s decision expressed in his will have only a prima facie effect.*
So with that in mind, best I now get to that codicil about being buried in the old Camry with the cappuccino machine by my side.

[* Pontifical Society for the Propagation of the Faith v Scales (1961-2) 107 CLR 9]

Why do so many people stay in relationships that are not good for them? Is it that our brains are hard wired to believe there is still love when there isn’t? Are unhappy couples waiting to divorce or separate after the kids have left home? Does a long term relationship, like my grandparents, mean enduring the good and the bad or maybe even the belief that marriage vows must be stuck to in “matrimonial sickness” and health.
Let’s take a look at the 7 warning signs that it may be time to end your relationship.

Your needs aren’t being met
Every person has different “requirements” that need to be met in a relationship, according to Julie Wadley, founder and CEO of matchmaking and coaching service Eli Simone. These needs can be emotional, like wanting quality time with your partner, or functional, like requiring them to competently manage money.

When one partner feels that the other isn’t fulfilling a requirement, Wadley says, it’s important to communicate that. If that person’s partner isn’t willing to try harder to fulfill that need, it’s probably time to move on, she says.

One of the reasons people stay in relationships that don’t meet their needs stems from the negative views our society has about being single, according to Wadley. It may seem like if they leave the relationship, they may never find something better. But Wadley says that mentality wastes valuable time and perpetuates a person’s unhappiness. “You could be taking that time to find someone who will give you what you need,” she says.

You’re seeking those needs from others
When you get promoted at work or you’re faced with a family emergency, who is the first person you want to tell? In a fulfilling, healthy relationship, the answer to those questions should be your partner, according to Wadley.

It’s great to have trusted colleagues at work, but Wadley says if you’re constantly turning to a “work husband” or “work wife” for support, it may be a sign that you’re not getting the support you need from your partner. “If you’re like, ‘I have a choice between talking to my boyfriend and talking to my guy friend, the guy who is constantly giving you that emotional affirmation that I need — I’m going with the friend,’” Wadley says, “Something’s not right.”

If either you or your partner is seeking emotional or physical fulfillment from people outside of your relationship, Wadley says it’s a clear indication that it’s probably time to end the relationship.

You’re scared to ask for more from your partner
It’s natural to feel uncomfortable talking to your partner about what you need and may not be getting from your relationship. But Wadley says open lines of communication are essential to lasting, healthy partnerships.

“People may think, ‘That’s going to make me sound needy and emotional,’” says Wadley. Instead of speaking up, they suppress how they feel, continue on with their dissatisfaction and feign contentment out of fear of feeling like a burden.

“Then something happens that breaks the camel’s back,” she says. And the argument that ensues can wind up being more damaging to the relationship than it would have been if you had addressed it sooner. Hiding your true feelings about how your partner is treating you likely prolongs the unfulfilling relationship, rather than saves it, according to Wadley. If you can’t get past the fear of confronting your partner, it’s probably time to seek help or part ways, she says.

Your friends and family don’t support your relationship
Lindsay Chrisler, a New York-based dating and relationships coach says you should take stock of how your trusted family members and friends feel about your relationship. “If nobody in the community supports your relationship, that’s a red flag,” she says. If the people who love and support you see that the person you’re in love with isn’t making you happy, it’s a good idea to listen to their opinions, according to Chrisler.

If you decide to push aside your friends’ and family’s concerns, it may lead to another sign that it’s time to let go of the relationship: “You’re starting to lie to your friends, you’re starting to lie to yourself,” says Chrisler. When you isolate yourself from your loved ones in order to avoid listening to their concerns, they’re probably right — the relationship probably isn’t, she says.

You feel obligated to stay with your partner
People are more likely to stay in relationships that they’ve already invested time and effort in, a 2016 study published in Current Psychology found. This is similar to a money investment phenomenon known as the “sunk cost effect.” A prior investment leads to a continuous investment, even when the decision doesn’t make you happy.

“When it comes to people and relationships, time does not necessarily equal success,” says Wadley, who added that many of her clients are reluctant to leave an unhappy relationship because they want to reap the rewards of their investment.

But simply investing more time in a relationship with someone you love won’t fix the problems. If both partners aren’t willing to work to fulfill the other’s needs, the relationship probably isn’t worth more time. Of course, when two people are in love and have spent years together or have started a family together, there is a stronger incentive to work out the problems, says Chrisler. Her advice is to seek couples’ counseling if both partners want the relationship to work. But she caveats that you should set a time limit of one year.

“If you spend too much time in indecision, it will erode the foundation of the relationship to the point where you can’t really make it back,” she says.

After about a year of actively working on the relationship and unsuccessfully trying to meet each other’s needs, the difficult decision to break up is likely the best decision, according to Chrisler.

You don’t like your partner
While it may sound counterintuitive, Chrisler says you can actually be in love with a person you don’t like. If that’s the case, you may get by day to day, but it will be nearly impossible to make it through difficult times together.

All couples have disagreements, but people in healthy, loving relationships keep the mindset that “this is my friend, and I’m going to get through this with this person,” Chrisler says. “And I don’t know how you get through those things without liking them.”

Still, it’s never easy to walk away from someone you love — even when the relationship isn’t working, according to Chrisler. The key, she says, is to listen to the logical part of your brain, instead of submitting to the euphoric chemical reactions that love can cause.

Your partner is abusive
It’s possible for people in an abusive relationship to love an abusive partner. One in four women and one in 10 men have been victims of intimate partner violence, according to a 2015 survey conducted by the Center for Disease Control and Prevention. A 2010 study conducted by the National Institute of Mental Health found that more than half of the women surveyed saw their abusive partners as “highly dependable.” One in five of the women surveyed said the men possessed significant positive traits, like “being affectionate.” Researchers found that these views contributed to some victims staying in abusive relationships, among other reasons — like isolation, extortion and physical violence.

When it comes to abuse of any kind, Chrisler says it’s crucial to safely find a way out. “It’s difficult to get out of those relationships,” she says. “You have to really love yourself.”

If you are considering divorce, check out our resources HERE