An affidavit is a written statement prepared by a party or a witness to proceedings. It sets out the facts on which that person relies as evidence in the case. An affidavit should support the interim or final orders sought in the application or response and provide the facts surrounding the reasons those orders as sought.
An affidavit must be filed in the prescribed form available on the Family Court of Australia and Federal Circuit Court of Australia websites and should be signed by the person swearing or affirming the affidavit on each page and witnessed by a solicitor or dually qualified person.
Affidavits in the Federal Circuit Court
Rule 4.05 of the Federal Circuit Court Rules 2001 provides that a party filing an application or a response in the Federal Circuit Court of Australia, whether they are seeking Interim or final orders, must file an accompanying affidavit setting out the facts on which they seek to rely. An affidavit is only not required to be filed in circumstances where a party’s application for interim or procedural orders is supported by an affidavit already filed in the proceedings.
Affidavits in the Family Court
Rule 5.02 of the Family Law Rules 2004 requires parties to file an affidavit in matters in the Family Court of Australia where interim, procedural or ancillary orders are sought. There is no requirement to file an affidavit to commence proceedings where final orders only are sought.
Affidavits in property matters
In property proceedings, it is imperative the affidavit supports the orders sought and provides evidence for the court to assess whether an alteration of property interests is required and what that alteration should be. The affidavit should address:
- the duration of the relationship or marriage;
- whether there are any children of the relationship or marriage;
- the asset pool available for division;
- the financial and non-financial contributions made during the marriage or relationship;
- the future needs aspects and other factors;
- whether it is just and equitable for the court to alter property interests;
- how the alteration sought is just and equitable. You will need to explain to the court the reasons you are seeking particular orders.
Please note that this is not an exhaustive list and the contents of the affidavit should be assessed in each matter.
It is important to have evidence of the facts set out in your affidavit. That evidence may be attached to an affidavit as an annexure.
What should the affidavit not address?
An affidavit should not include personal opinions of the person swearing/affirming the affidavit, nor include hearsay of that person, because both are objectionable evidence and likely to be struck out by the other party at a final hearing of the matter. It is important to note that affidavits should be kept as factual as possible.
For advice or representation in any legal matter, please contact Armstrong Legal.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?