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, this 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 Swan 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 Swan was born on the 22nd of December 2012 and our daughter Eliza Susie Swan 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

Does what the kids feel actually matter?
Our Family Law Act in Australia makes it pretty clear that  the ‘best interests of the children’ is the main consideration for the court when making decisions about parenting. But what indeed happens when Mum and Dad separate and the kids don’t want to spend time with the parent who isn’t the primary carer?
A recent decision in the Federal Circuit Court (Weller & Weller [2017]), makes a decision that leaves little doubt that the opinion of the children isn’t an overriding reason to stop dad (or mum) from having visiting rights.

This case involved two children, aged 11 and 14. They had told both the mother, and the court appointed Family Consultant, that they were very unhappy and resistant to spending time with their father. One of the children, during a ‘Child Conference’, said to the Family Consultant that their father, on a visit to his home at Christmas, had made them stand out in the rain with all the Christmas presents he had given them because he said they had been ‘ungrateful’.
The court in its judgement noted that it is not for children to decide where they live, and if they spend time with the parent with whom they do not live. This is a matter for the parents, and if the parents cannot decide or agree, and if there is an appropriate application before the Court, then it is a matter for the Court.

The Court of course is bound to follow both the Family Law Act, and previous decisions in the court, in determining primary considerations like this. 
And in doing this, the Court must give greater weight to the need to protect children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the children having a meaningful relationship with both of the parents. It must ensure that any order it makes does not expose a child to an unacceptable risk of family violence.

But if the issue of violence is not in the mix, as was the case here, the Court must apply the provisions of section 65DAA of the Family Law Act which looks at children spending EQUAL time with their parents.
However, where Court finds that it is not in the children’s best interests or practicable (think here where a parent lives a considerable distance away from the children), then the Court must consider the children spending substantial and significant time with the parents. Of course these words ‘substantial’ and significant’, don’t have any fixed meaning.

The two children in this matter attended ‘reunification therapy’ and in one of the sessions, when their mother was also present, they all brainstormed in how they could repair their relationship with the father, including:
More compromise and discussion relating to activities they would do together; a rule regarding not swearing; that Dad would attempt to ‘not to get so angry’ and that both parents would agree not to say negative things about the other parent in the presence of the children or on social media.
[The Legal Eagle covered “the destructive powers of parents dissing each other on Facebook” HERE.]
Later at a different session, where the father attended with the children, this feedback from the children regarding their  feelings as well as their concerns regarding contact with the father was passed on to him.
The children and the father agreed on a range of things that they would each try and work on to improve their relationship. A “Contract” was drawn up which listed, among other things, the following matters:
1. No swearing
2. No unkind comparisons 
3. No bum touching
4. No calling one child fat
5. Replying to msgs and calling Dad
6. No rushing by Dad

Even though the kids were unhappy with spending time with Dad because of his off putting and at times insensitive behaviour, the court felt that the issues raised by the children were not enough to allow them to stop seeing him. While the Court appreciated that children see things differently to adults, and that in children’s eyes some things may appear more important than they would in an adult’s eyes, but it’s role is to consider ALL of the available evidence and make an assessment based on the evidence. The court did allow for a final Family Report to be done to assess whether the future visits were working well for all concerned before final orders relating to parenting were put in place.

In these sort of matters the court does have wide discretion to the weight it gives to certain factors. As children move closer to an adult age, their opinions are often given much more weight. The strength of their views, and the length of time they have held them is also important. Additionally, if the child’s views are well thought through, or are as a result of pressure on the child, will also have weight in the court making parenting decisions.

As the court noted in this matter, “The Court is charged with the task of assessing what is in these children’s best interests, and it does this by, in part, turning its mind to weighing the probabilities of competing claims and the likely impact on children in the event that controversial assertions are acted upon or rejected. This includes the possibility of these children continuing along a trajectory of a fractured relationship with their father which may well be on its way to being beyond repair, if it is not already.”

And indeed what is the greatest risk in the long term?
Is the risk of losing a child’s relationship with one parent the greater risk?
It is here that the long term affect, throughout a person’s life, of having no contact with one parent can have devastating and psychological consequences.

Find out about more about what happens to the kids when you separate HERE.

Tom had decided that enough was enough. Feeling hard done by in his parenting matter before the courts, he decided to take to social media and attack all and sundry. No one was safe in his tirade as post after post criticised his ex-partner, the Judge and even the lawyers on both sides.
“I’d pretty much had a gut full of the family court and all the game playing and long winded rubbish that comes with it”. For Tom, venting on Facebook was his way of letting off steam to his friends about not being able to see his kids for many months. “Don’t get me wrong, I’m not some internet troll, I just wanted to let my mates and family know that what was happening to me and the kids was shitty”.

Unfortunately, Tom’s approach is an absolute no no when it comes to the court. When dabbling in social media you really have to be careful about what you post, regardless of whether you’ve got a family law matter in the courts or even a simple property dispute. Yesterday’s angry posts can come back to haunt you tomorrow!

Five Ways to Avoid a Family Law Disaster on Social Media

1. DON’T PUBLICISE YOUR FAMILY COURT MATTER
The Family Law Act is the law that guides the courts when it is making decisions about your matter. One thing it prohibits is publication of the details of family law proceedings.  And by publication that doesn’t just mean mentions of your matter in newspapers, television and radio. Publicising anything about your matters before the court on Facebook, Twitter, Instagram or any other social media site is strictly forbidden. In fact, even if your an amateur blogger writing to a limited audience it is still considered a violation of the law [Section 121, Family Law Act]. It doesn’t matter how minor the proceeding is, even the simple issuing of a subpoena can not be talked about to third parties.

And while non-court-based family services, such as family counselling and family dispute resolution procedures, are not “proceedings” these services are subject to confidentiality  provisions so any communications made under these conditions should also not be disclosed to third parties.

In one case a father posted on his Facebook page photos of the mother and children and information identifying where they lived. The Judge regarded these postings as publishing, describing the father as having “caused to be placed in the public domain on a public Facebook page viewable by anybody who should choose to look upon them”. He concluded that the father’s actions were  in breach of s 121 and ordered that he remove the posts and be restrained from posting on the internet or publishing any photographs of the mother or the children or any reference to, or comment about, the mother or the children or the proceedings.
The thing is, Section 121 is aimed at giving privacy protection for people involved in family law proceedings. And the court takes this seriously with penalties that include fines  and even imprisonment for up to 12 months.  Yikes!

2. POSTS CAN COME BACK TO BITE YOU
Posting on social media and is now affecting the outcome of family court cases on a daily basis. One Family Court Judge has stated that social media “is a veritable ‘Aladdin’s Cave’ which parties  readily and regularly explore for incriminating ‘evidence’ to be used in litigation”.Whether it’s a parenting or property dispute you need to be ultra careful what you put out on social media to a potentially wide audience, which may include the other parties’ lawyer.

Posting when your away with the birdies on drugs or alcohol 
A drunk night out with a mobile phone close at hand can lead to some inappropriate posting, but those morning after blues may hit you hard when your offensive ramblings or lewd pic posting is raised in court as evidence you’re an unfit parent.

Threats – whether meant or not
This should go without saying … But don’t threaten your ex on social media. Don’t even jokingly threaten them. It’s illegal and it can be used against you in Family Court (if not criminal court).
In a 2015 case, a father’s Facebook posts were found to be a deliberate attempt to intimidate the mother where he posted a person holding a gun with an indirect reference to his ex-partner.
In another matter, the mother relied on the father’s Facebook post of an image of a man assassinating a woman by shooting her and making her fall off a cliff. The Judge noted that this demonstrated that the father has no contrition or insight as to how such image could affect the mother. 
So even indirect intimidation can highlight to the court problems with your character.
Posting about anything to do with an ongoing family court matter
In another reported case a status update from a mother was admitted as evidence in proceedings. The mother had posted on her Facebook profile:
“I was worried for a while there he wouldn’t turn up, but he was running late. I don’t care. I’ve still got my babies. Felt like being a smart arse and telling him to be afraid that I won’t take them back for another six months which would equal another $20,000”.
Here mum was found to have deliberately prolonged the proceedings with the above status update used as evidence. The Judge concluding that the mother had abused the Court process and had exploited the father by making him incur further legal costs and had wasted the Court’s time and resources. A $15,000 costs order was made against the mother. Ouch!
Publicising your poor lifestyle choices
In another case, a dad’s Facebook posts about his larrikin drunk flatmates left the Judge with no doubt that the father could not be trusted with overnight stays with his child. Despite the fact that dad had arrangements for overnight and weekend stays the Judge overruled the original orders due to the evidence presented about his posts. The Judge made future overnight contact conditional upon the father having his own residence. The Judge noted that: “Put simply I do not trust his choice of friends. This is apparent from the Facebook exchange. He says that none of the people he currently lives with participated in that exchange. But that is not the point. He is plainly happy to have extremely undesirable people as friends and acquaintances.

3. FACEBOOK FIGHTS AIN’T IN THE BEST INTERESTS OF THE KIDS
“He is a hopeless father”, “She is such a loser”, “OMG I hate him so much”
One of the Courts obligations is to consider the relationship of the parents and their ability to facilitate and encourage a relationship between the other party and the child. These sorts of comments hardly give that impression.
If the matter is already in court, one of the most common orders that a court will make is a “non-denigration order”, that is that neither party shall denigrate the other in the presence or hearing of the children. If your child is your friend on Facebook (not recommended) then this would constitute a breach of that order.

4. TWEETS AND POSTS CAN SPREAD LIKE WILDFIRE
Facebook Information can be shared very quickly. Even if you think your settings are totally private, another person can re-post photographs of you and make commentary about where and why the pic was taken. Other people are able to tag or identify you in photographs, even if you do not want to be tagged or identified. Reckless and irresponsible posts on social media can be used in court against you.
Your ex’s lawyer may be inclined to try to subpoena that information as part of the overall case, including any email sent to you as part of that Facebook account. They may also ask you in the discovery process (the pre-court stage where each party can demand information from the other) to disclose your Facebook account password and log in information, so they can see what is contained in those emails and the private parts of your Facebook account.  So nothing really is sacred when it comes to fighting a family dispute in the courts.

5. KIDS ARE CURIOUS CRITTERS
Another pertinent reason why you should watch what you post on social media is the impact it can have on your kids.
It is not unusual for children to view the texts, emails and photographs on your mobile or computer. And remember that in doing this they could  also discover things that might upset them, like stuff showing that your involved in an extra marital relationship or that you think their dad is an ass.  These social media postings may be embarrassing and confronting for them. Their school friends may also have access to your social media postings which could lead them to possible bullying and ridicule.  Don’t forget that in family law the primary concern of the court is whether something is in the best interests of the child.

Tips For Keeping Out of Social Media Trouble

• If you have Facebook on your smart phone, delete the App before you leave home. This will remove the temptation to write anything about your former partner on Facebook and allow you some time to reconsider the photos that you post or comments you make.
• Make sure you lock your social media accounts so your kids can’t see anything that might upset them. Plus if any of your content is potentially going to do this – remove it.
• Tell your friends not to post any photos of you without your approval.
• Change your password — Ensure that only you have the password to access your account. Check your privacy settings — Check who can see your profile and how much of your profile they can see.
• Ask your friends that you have to first approve any “tagging” of yourself in photos. 
• Review your “friends” list and remove people if necessary — People whom you considered “friends” during your relationship may not be post-separation. Such “friends” may be waiting to take a screen shot of your slip ups.
• Think before you post — Remember that everything you post has the potential to find its way into evidence in your proceedings.
• Do not post about your proceedings or your former partner. Be child focussed. If you would not want a Judge to read it, do not post it!
• Consider going offline — It may be best for you to avoid using Facebook (and other social media) until your Family Law proceedings have concluded.
• And finally, don’t over share – parents need to be careful regarding the overuse of social media to share content based on their children, especially where the other parent doesn’t agree.

CLICK to >   Find out what the deal is with CHILD SUPPORT