Legal Affidavits

What is an affidavit?

If you are applying to one of the Courts, you may be required to file an affidavit.

An affidavit is a formal written statement setting out the facts of your case. The affidavit becomes evidence in your case. . It is the main way you present evidence (facts of the case) to a court.It must be sworn, or affirmed, usually before a Justice of the Peace, Commissioner of Oaths or solicitor, as a true record. Affidavits may also be sworn by other people in support of your case e.g. witnesses. The court has a precedent form to use

Evidence can be a complex matter. The Evidence Act 1995 (Cth) sets out rules about evidence. Some simple information is provided below, it is a guide only.

Any affidavit you file in court to support your case must be served on all parties, including the independent children’s lawyer (if appointed).

Why are affidavits important?

Affidavits present the facts you rely on for your case – your evidence. Oral (spoken) evidence is only allowed with the Judge’s permission so you need to prepare your affidavits carefully.

When do you file an affidavit?

In the Family Court, you need to file an affidavit with an interim application, response or when directed by the Court. The Family Court has affidavit kits for applicants and respondents. They include a blank affidavit form.

In the Federal Magistrates Court, you need to file an affidavit with your application or response, for both interim and final orders, and when directed by the Court. The Federal Magistrates Court has a blank affidavit form which can be used by applicants and respondents.

You should use the form that is relevant to the Court handling your matter. For further information go to the Forms section of the family law courts website.

What can you say in a affidavit?

The affidavit is a statement of facts. It should set out observations without colour or comments. Generally the affidavit should not set out the opinion of the person making the affidavit.

In writing your affidavit it would be useful to refer to the factors a court must consider before making an order about what is in a child’s best interest.

Issues that you may want to consider include who has been the primary carer of the children, what has been the arrangements for the care of the children until this time, and any concerns that you may have in relation to the safety of yourself and the children.

What does an affidavit look like?

The affidavit should be typed (double line spaced and 12 point font) or printed clearly on only one side of the page. The content of an affidavit should be divided into paragraphs that are numbered. It is a good idea to divide an affidavit into sections under separate headings; for example, the heading might be ‘Arrangements for the children after separation’ or ‘Property accrued during the marriage’. Each paragraph should, if possible, cover one topic or subject matter.

If you need help preparing your affidavit, you should get legal advice. Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.

Sarah Center Information System LLP is Incredibly and fully responsive.
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