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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 Federal Circuit and Family Court of Australia (FCFCA) website 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 filed with applications and responses

A party filing an application or a response in the Federal Circuit and Family Court of Australia (FCFCA) must file an accompanying affidavit setting out the facts they are relying on. This must occur whether the party is seeking Interim or final orders and whether they are the applicant or the respondent.

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 filed where interim orders sought

Parties must file an affidavit in matters in the FCFCA 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.

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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