Understanding and Drafting Affidavits
An affidavit is a written statement that a person swears to be true, and courts use it as evidence. It plays a crucial role in legal proceedings, especially in the Federal Circuit and Family Court of Australia (FCFCOA). This guide explains how to understand and draft effective affidavits.
Importance of Affidavits
Affidavits allow a party to present their evidence directly to the court for the orders they seek. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 outline specific requirements for preparing and filing affidavits.
Key Requirements for Affidavits
Structure:
Divide an affidavit into consecutively numbered paragraphs, ensuring each paragraph deals with one specific part of the subject matter.
Identification:
State the case file number, the name of the party filing the affidavit, the deponent’s full name and residential address (unless this endangers their safety), and the name of the authorised witness before whom the affidavit was sworn or affirmed on the first page.
Content:
Confine the affidavit to relevant facts and admissible evidence. The deponent must swear or affirm the affidavit in the presence of a witness, and both must sign the bottom of each page.
Special Considerations
Parenting Matters:
When an affidavit concerns parenting matters and omits the party’s address, provide that address to the court by email. The court must not release it unless it makes a specific order.
Documents:
Identify and file any documents used with an affidavit as annexures or exhibits. Paginate and have the witness sign them. Serve these documents with the affidavit so the court can admit them into evidence.
Special Cases
Blind or Illiterate Deponents:
When the deponent is blind or illiterate, the affidavit must confirm that someone read it aloud. They must also relay the deponent appeared to understand it, and that the deponent indicated the contents were true.
Non-English Speakers:
If the deponent does not understand English, provide a translation of both the affidavit and the oath in a language they understand. The translator must certify the accuracy of the translation.
An affidavit is often the most important document in a legal case. It must be drafted with care to ensure it effectively presents the relevant evidence. While a well-drafted affidavit does not guarantee the desired outcome, it avoids criticism from the court and strengthens a party’s position.
Given the complexities involved in drafting affidavits, seeking professional legal advice is highly recommended. A qualified lawyer at My Legal Crunch, can provide guidance and ensure that any required affidavits meet all legal requirements and effectively supports your case.
