Affidavits 101: How to write a good Affidavit for Family Court

author
Emma Maxwell
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4 minutes
date
May 16, 2022
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5 Quick Tips: How to write a good Affidavit for Family Court

Welcome to Affidavits 101 – our first post in a series designed to help you prepare the best evidence you can in your family law case.

Firstly, what is an Affidavit?

An Affidavit is a written statement prepared by either a party to the proceedings or a witness (such as a friend or family member that is providing a supporting document, or perhaps a Doctor or other expert that is providing a report in your matter).

An affidavit is sworn (or affirmed) by the deponent (the person giving the Affidavit) in front of a person allowed to witness an Affidavit (see list below) and then filed with the Court.

Affidavits are the main way that evidence is put to the Court and are therefore some of the most important documents in your case.

Importantly, Affidavits aren’t Statutory Declarations (“Stat Decs”) and the Court won’t accept a Stat Dec as evidence in your case.

ONE: Avoid Absolutes.

Try and keep words like “always” and “never” out of your Affidavit – they’re just too easy for the other side to pick apart and cast doubt on your material.

For example, it’s tempting to write, “she was always yelling” – except those times she was asleep and eating. Or, “he never helped bathe the children” – but here is a photo on his Facebook of the one time he did.

TWO: Know Your Page Limits.

Except for Trial Affidavits, which we will address in another blog post, Affidavits have page limits (and limits to the amount of annexures you may have).

The Federal Circuit and Family Court of Australia (FCFCOA) has two divisions – Division 1 (the former Family Court) and Division 2 (the former Federal Circuit Court). All matters enter the FCFCOA at Division 2 and are then elevated to Division 1 if necessary.

In Division 2, where your case is mostly likely to be heard, the page limit is 10 pages per Affidavit and no more than 5 annexures.

In Division 1, the page limit is 25 pages and no more than 10 annexures.

THREE: Stick to the Facts You Know.

This means avoiding “hearsay”.

For every sentence you write in your Affidavit, think about “how do I know this?” If it is because you were present, use words like “saw her hit the child” or “he said to me I should go”.

If you weren’t there, and were told by someone else – ideally, ask them to provide an Affidavit of what happened.

FOUR: Stick to Your Own Expertise.

Similarly, be careful about making assertions that are beyond your own qualifications and professional experience.

A layperson can’t say someone, for example, “had post natal depression” unless they were there when that person was diagnosed or they are medical professional. A simpler way to include that information may be, “I grew concerned that she may have developed post natal depression and encouraged her to go to the Doctor” or “I saw a referral from her Doctor to a psychologist for treatment of her post natal depression”.

FIVE: Dates are Important.

Court evidence should be fixed in time and place to give credibility to what you are saying.

For example, “on 2 September 2020, Danny sent me a text message in which he said “you’re a terrible mother” is much better evidence than “Danny said I was a terrible mother”.

If you can’t remember the exact date, an approximation is better than not including that information. For example, “in around 2006, when Charlotte was about 2 years old, we left Melbourne and moved to Queensland”.

 

Finally, Who Can Witness an Affidavit:

Section 19(1) of the Oaths and Affirmations Act 2018 lists the following persons who are authorised to witness affidavits within Victoria (google “who can witness an Affidavit” and then the name of your State if you are outside Victoria):

  • a judicial officer;
  • an associate to a judicial officer;
  • an honorary justice;
  • the prothonotary or a deputy prothonotary of the Supreme Court;
  • the registrar of probates or an assistant registrar of probates;
  • the registrar or a deputy registrar of the County Court;
  • the principal registrar, a registrar or a deputy registrar of the Magistrates’ Court;
  • the principal registrar, a registrar or a deputy registrar of the Children’s Court;
  • the principal registrar, deputy registrar or a registrar of VCAT;
  • the principal registrar or a registrar of the Coroners Court;
  • a member of VCAT;
  • a member or former member of either House of the Parliament of Victoria;
  • a member or former member of either House of the Parliament of the Commonwealth;
  • a public notary;
  • an Australian legal practitioner;
  • a police officer of or above the rank of sergeant or for the time being in charge of a police station;
  • a person employed under Part 3 of the Public Administration Act 2004 with a prescribed classification;
  • a senior officer of a Council as defined in the Local Government Act 1989 ;
  • a person registered as a patent attorney under Chapter 20 of the Patents Act 1990 of the Commonwealth;
  • a fellow of the Institute of Legal Executives (Victoria) ACN 004 670 928;
  • a person acting judicially;
  • any other officer or person empowered, authorised or permitted by or under any Act or rules of a court or rules of a tribunal to take affidavits;
  • any prescribed person or person who is a member of a prescribed class of persons.