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Rules for Drafting Affidavits

Recent changes to the Family Law Rules 2004 have changed the way affidavits are to be drafted to be filed at Court and accepted into evidence by the Judge (or Senior Registrar) presiding over the matter. For clarity, an Affidavit is a written statement setting out a person’s evidence, that is, information that tends to prove or disprove a fact. A person may only give evidence in the family law courts by way of affidavit, unless otherwise ordered by the Court. There is a specific Court form called “Affidavit” that must be used. Therefore, it is important to be aware of these changes as they have a significant impact on how you or your legal representative can draft the evidence the Court reads for your matter.

In the Federal Circuit Court (the court that deals with the vast majority of matters), there is a Practice Direction that states if you make an application for interim parenting or property Orders, your affidavit must not be longer than 10 pages in length and cannot contain more than five annexures. This is often a daunting idea as many parties have many examples of events that relate to parenting matters and the Orders the Court has been asked to make, but not all such examples can fit into the 10 page limit. Further, there may be many text messages or emails that go to evidence of a party’s parenting proposal or their conduct, but you cannot include copies of them all as you only have space for 5 annexures.

There is no page limit for affidavits seeking final parenting or property Orders in the Federal Circuit Court, however you need to ensure that evidence is succinct and to the point.

In the Family Court, there is no requirement to initially file an Affidavit with your initiating Application if you are seeking only final property Orders. You will file your trial Affidavit when your matter is ready to be listed for a final hearing. When filing any Affidavit in the Family Court, as of 1 March 2018, you are not to file any annexures. Whilst you can still refer to annexure in the Affidavit, they are not filed with the Court. They are however served on the other party with the Affidavit. Therefore, there is increased importance on explaining your case within the body of the Affidavit as the Court will not read the annexures unless they are tendered to the judge at the day of the interim or final hearing.

If you have court proceedings on foot and need assistance in completing your Affidavit evidence, do not hesitate to contact one of Armstrong Legal’s family lawyers for advice.

Image Credit – Iakov Filimonov ©

Written by Bree Staines on July 27, 2018

Bree has a long held passion for family law, as she believes the law can be a mechanism to achieve positive and just change and resolutions for her clients. The diligence Bree puts into her work ensures she is always has a comprehensive understanding of the law and will be striving to achieve her client's goals, both efficiently and cost effectively. View Bree's profile

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