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In my experience within the Federal Circuit and Family Court of Australia, I’ve often encountered affidavits that, disappointingly, contain unhelpful and inflammatory content.

Reflecting on my own earlier career, I recognise that I may have been guilty of this at times. However, it’s important to note that it’s not solely new or inexperienced legal practitioners who draft such affidavits; even experienced lawyers can occasionally fall into this trap. It’s imperative for lawyers to pause and consider their fundamental duties. At times, we might become too engrossed in the narrative, losing sight of the primary objective.

We are not simply mouthpieces for our client, we are facilitators of justice with duties to the Court. We are operating in a system that should only be used when resolution through agreement is not possible.

With that in mind, I want to assist my client’s and other practitioners get back to the basics and draft helpful affidavits.

I have created this guide for a few fundamental reasons:

• 1. I have noticed a trend in our Courts that needs to end. Irrelevant, unhelpful, expensive affidavits that detract from a litigant’s application.
• 2. Litigants and indeed lawyers are often unsure if and when they need to file an affidavit.
• 3. Litigants and unfortunately some of lawyers are unsure what information they can and cannot include.

Let’s get down to the basics:

What is an affidavit?

An affidavit is a statement in writing usually prepared by a lawyer on behalf of a party to a Court proceeding or on behalf of a witness. It is the way evidence or facts are given to the Court.

It is a document that needs to be given to all people within the Court proceeding: the Judge or Registrar, other lawyers, other litigants or any independent children’s lawyer (if or when appointed). It is filed in the Commonwealth Portal, then the sealed version is served upon the parties (litigants).

Your affidavit is integral to your case. You will need to swear or affirm its accuracy and if you do not tell the truth, there can be serious consequences including imprisonment.

If your matter proceeds to trial, you will be cross examined on your affidavit, you will most likely be criticised and interrogated about any inconsistencies.

Frequently, I observe lawyers drafting affidavits on behalf of their clients, with the clients often unaware of the language being used. It surprises me to read the frequent inclusion of legal jargon in litigants’ affidavits.

Affidavits ought to reflect the words of the individual providing evidence and should be expressed in clear, everyday language.

When is an affidavit required?

An affidavit is required when you have an application or response to Orders of the Court, or you are directed to file an affidavit by a Judge or Registrar.

You are required to file an affidavit with any application or response seeking interim Orders, or as otherwise directed by the Court. There are certain Practice Directions relating to affidavits. If you wish to locate the form required for an affidavit, you can find the link below located on the Federal Circuit and Family Court Website:

• Family law and child support: www.fcfcoa.gov.au/fl/forms/affidavit

Should you prepare your own affidavit?

I do not recommend preparing your own affidavit. I do however recommend that you do your homework and consider what information you want within your affidavit prior to consulting with an experienced lawyer, as this simple exercise will save you money.

Legal advice should help ensure that your affidavit is helpful to your application. However, with the large disparity in the quality of legal advice you need to exercise caution. Some lawyers are obviously more skilled than others in drafting concise, helpful and relevant affidavits, and some lawyers are better at reigning client’s in when it comes to the contents of their affidavits.

Frequently, I see unnecessary and hurtful information in an affidavit that should never have been allowed. The Court does not need to know that in 1985, your husband encouraged you to abort the baby who is now a child within a proceeding. The Court does not need to know that your wife had an affair with a colleague at work and the intimate details about who said what, when in a property settlement.

Sometimes the hurtful, harmful information inflames your case and rather than assist in resolution, it assists in unnecessary costs. An experienced lawyer will let you know when to elaborate and will also let you know if you are giving information that is irrelevant to your case.

Affidavits that use inflammatory information that seeks to complicate a proceeding should be discouraged. The best practice is to consider what you wish to say and then contact us so that we can assist you to draft a helpful, cost effective statement of your evidence.

Structuring your Affidavit:

Your affidavit should be easy to read, in size 12 font, numbered pages and one sided. Each point or relevant fact you wish to put to the Court should be divided into numbered paragraphs.

We always encourage headings to indicate the topics or subject ie: Background to relationship, Post Separation Contributions, Care Arrangements for the Children after separation, Future Needs are just some examples.

Affidavits by a Witnesses

Often in a family law matter, family members or third parties wish to provide evidence. Usually, the document is self-serving and unhelpful. Before embarking on this costly exercise you should think about the following: is it relevant and is it helpful?

When relying on a third party affidavit it will need to be separate from any affidavit the party drafts. It will then need to be filed and served upon all parties to the proceeding. If the affidavit is not relevant, we would encourage you to reconsider the document as it just assists in escalation of fees.

What can you say in an affidavit?

As previously defined, an affidavit is a statement of facts. You need to include all relevant facts that support the matter you currently have before the Court. For instance, if your matter relates to spousal maintenance, your affidavit needs to include the relevant information a Judge will be looking for in either granting or refusing the application, depending upon which side of the proceeding you sit.

If you are the applicant, your affidavit needs to include details relating to your financial need and the other parties capacity to pay for your needs.

If you were the respondent, conversely, you may be indicating the opposite position unless of course there is a disparity in income and no reason not to pay the outgoings. Ideally, a respondent in such applications should consider who they would rather give their money to, a law firm or their family. Ego and fixed positions frequently make the Court a place where battles a fought on principle rather than merits.

I would recommend that if you have an application on foot, the affidavit is drafted with careful consideration of the legislative requirements. That’s why you need good legal advice from an experienced resolution based lawyer. It imperative that only relevant and helpful information is included.

Your affidavit should support the orders you have asked the Court to make in your application or response. The length of your affidavit in Division 2 can usually be no more than 10 pages long with 5 annexures unless specifically Ordered to the contrary. If you do not use a lawyer, will need to ensure that you read and understand the Family Court Rules and Practice Directions.

Note: in family law proceedings, an affidavit in support of an application for interlocutory orders must not:

In Division 1:

• exceed 25 pages in length for each affidavit or contain more than 10 annexures

In Division 2:

• exceed 10 pages in length for each affidavit or contain more than five annexures

If you wish to rely upon more than one affidavit, you need permission from the Court. To be clear, you can only rely on one affidavit from yourself, and one affidavit from each witness.

For more information we recommend you review rule 5.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules) this clarifies the limit on the number and length of affidavits.

Can I give my evidence in Court instead?

The Court has a preference that evidence is provided in written form. Frequently self represented litigants stand in Court and give evidence from the Bar table. It is usually to their detriment.

When a litigant or even a lawyer gives the evidence in Court rather than reliance on the material they are not putting their best case forward.

There is limited opportunity to give a personal account of your evidence in Court. Most evidence is provided by affidavit. This allows cases to run more efficiently, smoothly and efficiently because the parties have notice of the other parties position.

What should not be included in an affidavit?

Generally, an affidavit should not set out the opinion of the person making the affidavit; that is, it must be based on facts, not your beliefs or views. The exception is where the person is giving evidence as an expert; for instance, a psychologist or licensed valuer.

Where possible, you should avoid referring to facts that are based on information received from others. This is known as hearsay evidence.

Note: in family law proceedings, there are a number of exceptions to the hearsay rule. If you need to rely on hearsay evidence in your affidavit, get legal advice to see whether it would be admissible in court.

You cannot not refer to anything said, or documents produced in connection with dispute resolution or any attempt to negotiate a settlement of your dispute outside of court.

Negotiations or offers exchanged in medication are not admissible. There are some exceptions.

If you wish to use such information, I encourage you to obtain legal advice. If you are unable to afford a lawyer, you should read section 131 of the Evidence Act 1995 (Cth).

Attaching documents

Often in affidavits, litigants refer to documents. If you intend to rely upon a document in your evidence it needs to be attached to the back of your affidavit and is referred to as an exhibit or annexure. An example of this could be a settlement statement from the sale of a home, a child’s report card, a letter from the bank about home loan arrears, a letter from child support about an assessment.

Annexures require clear identification, you could use numbers or letters but they Annexures need to have a witness clause on them and if there is a large bundle, you should have numbers.

The statement must be signed at the same time as the affidavit and by the authorised witness such as a lawyer or a Justice of the Peace.

For more information about annexures or exhibits in family law proceedings, see rule 8.15 of the Family Law Rules.

Signing an affidavit

The person making an affidavit is known as the deponent. There is a requirement that the deponent sign the bottom of each page in the presence of the witness. The last page of the affidavit contains what is called a Jurat and requires compliance with the following:

• the full name of the deponent, and their signature
• if the affidavit is sworn or affirmed
• the day and place where the deponent has signed the affidavit, and
• the full name and occupation of the authorised witness, and their signature.

When there is a written alteration to the document, you must ensure you and the witness initial that alteration.

From the onset of the document, the party/litigant needs to properly identify themselves by including their full name, occupation and residential address on the first page of the affidavit. There is an exception in circumstances where disclosure of such information places the person in an unsafe situation.

If a deponent is illiterate, vision impaired or do not have a strong command of English, or are otherwise unable to sign an affidavit there is a requirement that an alternative Jurat is completed.

For more information about requirements for an alternative jurat, please see rule 8.17 of the Family Law Rules or rule 15.14 of the General Federal Law Rules.

There is a requirement that the alternative Jurat is used in such situations and I have seen cost orders against lawyers who have failed this requirement. It can be embarrassing for the litigant and incredibly embarrassing for the lawyer when this occurs.

Where the deponent is a party in a family law parenting proceeding, and they do not disclose their residential address, they must provide their residential address to the Court by email. The Court will record the address as ‘not to be disclosed’, other than by a court order: see rule 8.15(2) of the Family Law Rules.

Some Tips for helpful affidavits

I end this Guide with the following checklist that is critical to a well drafted affidavit:

1. Organise Your Information: Before drafting the affidavit, organise all relevant information and documents related to the case.

2. Be Clear and Concise: Keep your affidavit clear, concise, and to the point. Avoid using legal jargon or complex language that may be difficult for others to understand. Clearly state the facts of the case and avoid including opinions or speculation.

3. Include Only Relevant Information: Ensure that the information included in the affidavit is relevant to the case. Avoid including extraneous details that may distract from the main points. Stick to the facts that are directly related to the issues being addressed in the legal proceedings.

4. Use Specific Examples and Dates: Provide specific examples and dates to support the facts stated in the affidavit. This helps to establish credibility and demonstrates that the information provided is accurate and reliable.

5. Provide Supporting Evidence: Include supporting evidence such as documents and photographs to corroborate the facts stated in the affidavit. This helps to strengthen your case and provides additional credibility to your claims.

6. Swear or Affirm the Truthfulness: Affirm or swear under oath that the information provided in the affidavit is true and accurate to the best of your knowledge and belief.

7. Review and Revise: Carefully review and revise the affidavit before finalising it. Check for any errors or inconsistencies in the information provided and make any necessary corrections. It may also be helpful to have someone else review the affidavit to ensure clarity and accuracy. It may also be helpful to wait a day or two before finalising the affidavit.

8. Seek Legal Advice: If you are unsure about how to draft an affidavit or what information to include, seek legal advice from an experienced family lawyer. They can provide guidance and assistance to ensure that your affidavit meets the necessary legal requirements and effectively presents your case.

This guide seeks to provide assistance with drafting helpful affidavits but it does not negate the need to seek experienced legal advice from an experienced resolution based family lawyer.

When in doubt we invite you to call us for an initial consultation. For more information you can email us on info@alslaw.com.au. and communicate with Sophie or Elena on how we may help you through your legal journey.