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Child Custody - Affidavits

An affidavit is a statement signed under oath or affirmation to be used as evidence in a court proceeding. The statements contained in an affidavit must be factual, rather than based on opinion (unless the person making the affidavit is qualified to give that opinion, such as medical practitioner providing their professional opinion).

The Federal Circuit and Family Court of Australia has prescribed Affidavit templates to be used in family law proceedings.

What is the purpose of an affidavit?

An affidavit is a method of giving evidence. The evidence is usually untested until the matter proceeds to an Interim Hearing or Final Hearing. When a person swears or affirms an affidavit that is filed in family law proceedings, the person who made the affidavit may be cross examined about their evidence. Cross examination ‘tests’ the evidence for reliability.

In family law parenting proceedings, it is necessary to file an affidavit in support of the parenting orders that are being sought on an interim and final basis. An affidavit is also required in support of any Application in a Case that is filed during the proceedings. It is important to consider the exact orders sought and what evidence the court requires to make those orders. Legislation and reported cases will assist in determining what evidence the court requires.

For example, in parenting proceedings, the court has to consider the child’s best interests. In considering the child’s best interests, the court must consider the factors set out in Section 60CC of the Family Law Act 1975. Section 60CC(2) sets out that the two primary considerations are:

  • The child’s right to enjoy a meaningful relationship with both of the child’s parents; and
  • The need to protect the child from physical or psychological harm from abuse, neglect or family violence.

Section 60CC(3) sets out the additional factors the court must consider when determining what is in the child’s best interests.

What should the Affidavit address?

The following evidence (as is relevant to the facts of each case) should be included in an Affidavit to assist the court with considering the Section 60CC factors:

  • Background details about the child, including their full name, date of birth, school and grade (if relevant) and state of health;
  • Whether the child is Aboriginal or Torres Strait Islander and if so, how the child is involved with the customs and traditions of that culture, or otherwise enjoys that culture;
  • The child’s current living arrangements;
  • History of each party’s involvement with making long term decision in relation to the child;
  • History of each party spending time with the child;
  • History of each party communicating with the child;
  • History of each party maintaining the child;
  • Examples of the child’s behaviour when separated from one of their parents or other people, such as siblings and grandparents;
  • Details of any practical difficulty and expense associated with a child spending time with a parent;
  • Examples of each parent’s capacity, or lack thereof, to provide for the needs, including emotional and intellectual needs of the child;
  • Details about the maturity, sex, lifestyle, background, culture and traditions of a child, and the child’s parents;
  • Examples of the parent’s attitude towards the child and commitment to parenthood;
  • Details of any family violence; and
  • Details of any family violence order.

Drafting an affidavit

Affidavit evidence should be precise, including dates, times and quotes where applicable. Broad statements should be avoided, as they may be struck out due to being opinionated or a conclusion. Rather than a broad statement, use considered specific examples with detail. For examples, rather than saying “it is not practical for the child to spend time with Parent A every second day because of the distance between Parent A and Parent B’s home” as this is a conclusion, list the facts in details that establish this. For example, say:

  • “The Child lives with me in Area Y. The child’s school is in Area Y, about 2kms for the child’s home.”
  • “Parent A lives in Area X. Area X and Y are 150kms apart from one another. Annexed is a copy of a map showing the distance between the two areas.”
  • “Neither parent A or parent B has a motor vehicle licence.”
  • “Public transport is available between Area x and Area Y. There is a train from Area X to Area Z, and a further train from area Z to area Y. The train operates once a day at 9.00 and arrives at 12.00pm. Annexed is a copy of the current train timetable printed from website www.trains.com.au”

From the evidence about the location of each of the parties’ residences and the transport option, the court can draw the conclusion that it is not practical for the child to spend every second night with Parent A. As can be seen in the above example, it may be helpful to attach a document to the Affidavit, this is referred to as an annexure.

Quotes should be included when referring to conversations. For example, rather than say “Parent A says derogatory things about me, sometimes the child hears Parent A say these things” use specific examples, such as:

  • On or about 1 January 2017, Parent A said to me words to the effect of “You are stupid.” The child was in the same room as Parent A and me when this was said.”
  • The following day, I had the following conversation with the child:
    • Parent B: “Can you please pick up your toys”
    • Child: “You are stupid.”

Again, the court can rely upon the evidence to conclude that Parent A says derogatory things about Parent B.

There are rules of evidence that set out what can be included in an Affidavit and how an Affidavit is to be set out. Evidence that does not comply with the rules may not be admissible. It is very important that the rules about Affidavit drafting are complied with.

Parties cannot lead evidence that is not in an admissible format in an Affidavit without permission from the court. Therefore, if important information is either not included in an Affidavit, or not in an admissible format (such as a conclusion rather than a fact), it may not be considered by the court when the court makes a determination.

The importance of Affidavits in family law proceedings and the drafting complexities can make drafting your own Affidavit a difficult task.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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