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 that the Affidavit supports the Orders sought in the Application or Response and provides evidence which addresses the legislative pathway the Court adopts when assessing whether an alteration of property interests is required and what that alteration looks like for the parties. In summary the Affidavit should address the following:
- 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 pursuant to Section 79(4) of the Family Law Act 1975 (Cth) (by way of example only, who paid the deposit for the former matrimonial home);
- The future needs aspects and other factors pursuant to Section 75(2) of the Family Law Act 1975 (Cth) (by way of example only, does one party care for the children or is unable to gain employment or suffers from ill health which affects their ability to earn an income);
- 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 (by way of example only, if you seek to retain the former matrimonial home, you will need to include details as to how you are in a financial position to do so).
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 by way of annexure.
What should the affidavit not address?
An Affidavit should not include the personal opinions of the person swearing/affirming the Affidavit, nor include hearsay of that person, as 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.
WHERE TO NEXT?
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