Family Court Affidavit: 6 Things You Need to Know
What is an Affidavit?
An affidavit is a written statement used as evidence in court proceedings. It is a way for a person to present their case to the court, detailing the facts they wish to rely upon to support their case.
Important Facts about Family Court Affidavit
Here are some essential points about a family court affidavit:
- Sworn or affirmed document: An affidavit is either sworn (for those who choose to swear on a religious text) or affirmed (for those who do not wish to swear on a religious text) before an authorised person, such as a lawyer or a justice of the peace. This means that the person making the affidavit asserts the information is accurate.
- First-person account: An affidavit is written in the first person from the perspective of the person making it. It should only include facts that the person making the affidavit knows or believes to be true.
- Admissible in court: An affidavit is admissible as evidence in court. It is used to present a person’s version of events and may also be used to present evidence from expert witnesses.
- Cross-examination: The person who makes an affidavit (the affiant) may be cross-examined on the content of the affidavit during a hearing or trial.
- Format and content: There are specific rules about the form and content of an affidavit. It should be divided into numbered paragraphs, with each section containing a separate factual allegation. Hearsay evidence and opinion (unless it’s an expert opinion) are generally not included, except in certain circumstances.
- Penalties for false statements: Because an affidavit is a sworn or affirmed statement, making a false statement in an affidavit can have serious consequences, including penalties for perjury.
When Do I File a Family Court Affidavit?
A family court affidavit is generally filed when you want to present evidence to the court. This can occur at different stages of the proceedings, depending on the nature of the case. Below are a few common situations where a family court affidavit might be required:
Interim Proceedings: In a family law case, you might be required to file an affidavit when making a provisional application, for example, seeking temporary orders for child custody, spousal maintenance, or property disputes until the final hearing.
Final Hearing: For a final hearing or trial, you must file an affidavit that sets out all the evidence you rely on for the matters in dispute. It provides evidence supporting your claim and response to the other party’s claim.
Response to Application: If you are responding to an application made by another party, you may need to file an affidavit to provide your evidence against the application.
Expert Witnesses: Experts, such as psychologists or financial experts, file affidavits to present their professional opinions to the court.
In Support of a Subpoena: If you seek to subpoena a person or documents, you may need to file an affidavit explaining why the information sought is relevant and necessary for your case.
Remember, deadlines to file an affidavit will depend on the rules of the court and the specifics of your case. Failing to file an affidavit on time to avoid delays in your case or potentially the court proceeding without your evidence.
Do I Need a Lawyer to Make a Family Court Affidavit?
While it’s possible to create a family court affidavit without a lawyer, having legal assistance can be very beneficial due to the legal and procedural complexities involved.
Here’s why having a lawyer can help make an affidavit:
Understanding Legal Requirements: A lawyer can help you understand the legal requirements and standards for an affidavit, including what kind of information should be included or excluded, how to structure the document correctly, and the rules about hearsay and opinion evidence.
Focusing on Relevant Information: Lawyers can help ensure that your affidavit focuses on facts relevant to your case’s legal issues. Your affidavit must be concise and directly relevant to the issues being decided by the court.
Assistance with Drafting: Drafting an affidavit can be challenging. Lawyers are experienced in drafting and can help ensure that your statements are clear, concise, and understandable.
Avoiding Mistakes: Making a mistake in an affidavit, such as including incorrect information or omitting essential facts, can have serious implications for your case. A lawyer can help prevent such errors.
Swearing or Affirming the Affidavit: In most jurisdictions, an affidavit must be sworn or affirmed before an authorised person, such as a lawyer, a notary public, or a Justice of the Peace.
Understanding the Consequences: Lawyers can explain the potential legal consequences of making an affidavit, including the possibility of being cross-examined on the contents of the affidavit in court and the penalties for perjury if the information in the affidavit is not accurate.
Do Witnesses Need to Make an Affidavit?
The short answer is yes. Witnesses are often required to make an affidavit in many legal proceedings, including family law cases in Australia.
The affidavit serves as the witness’s written testimony, outlining their knowledge of the events or issues relevant to the case.
What Should Not Be Included In An Affidavit?
An affidavit is a critical document that presents your evidence to the court. However, not all information is suitable or admissible in an affidavit. Here are some things that generally should not be included in an affidavit:
Opinions: You need to be an expert providing an expert affidavit to include your opinions. Affidavits should focus on facts, not on your personal views or interpretations of events.
Hearsay: Hearsay, which is information you heard from someone else but did not witness yourself, is generally not admissible in court and should not be included in an affidavit. However, there are exceptions to this rule, so it’s vital to seek legal advice if you are unsure.
Irrelevant Information: Only facts directly relevant to the issues in dispute should be included in your affidavit. Including excessive or irrelevant information can make your affidavit less focused and confuse or frustrate the court.
Legal Arguments: Your affidavit differs from the place to make arguments or interpret the law. It’s a place to present factual evidence. Legal disputes should be saved for your submissions or pleadings.
Confidential or Privileged Information: Certain types of information are protected by law and should not be disclosed in an affidavit. This could include certain types of communications between a lawyer and client and certain personal records.
Abusive or Offensive Language: An affidavit should be a neutral and factual document.
Confused About Family Court Affidavit?
Don’t be! Our family lawyers demystify the process, helping you present your facts effectively. From provisional applications to final hearings, our expertise spans all types of affidavits.
We ensure your voice is heard and your rights are protected. Let Justice Family Lawyers navigate the complexity of affidavits for you, making your path to resolution smoother and more precise.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
