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.
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.
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:
- I am the Applicant mother in this matter.
- I was born on the 2nd of May 1986.
- The respondent father John Swan was born on the 19th of May 1976.
- I began a relationship with the the Respondent in early 2010.
- The Respondent and I were married on the 3rd of January 2011.
- We separated on the 5th of July 2018.
- 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.
- I am presently the primary carer of both the children.
- The respondent sees his children once a week.
- He picks up the children on each Saturday for 5 hours between 12 noon and 5pm.
- 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
- 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.
- 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.
- He also gave an assessment of the injury. Please refer to Annexure 1 for this assessment
- 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 firstname.lastname@example.org and one of our experienced legal drafters [for a small fee] can get it looking spot on.
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