Understanding and Drafting Affidavits
An affidavit is a written statement of facts that a person swears to be true before an authorised witness. Courts rely on affidavits as evidence, making them a critical component of many legal proceedings. In the Federal Circuit and Family Court of Australia (FCFCOA), affidavits are frequently used to present evidence in both interim and final hearings. Understanding how affidavits work and how to draft them correctly is essential to ensuring your evidence is accepted and given appropriate weight by the court.
Importance of Affidavits
Affidavits allow a party to formally place their evidence before the court in support of the orders they seek. Unlike oral testimony, affidavits provide a structured and written record of facts that the court can review in advance of hearings. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 set out strict requirements governing the preparation, content, and filing of affidavits. Failure to comply with these rules can result in parts of an affidavit being rejected, limited, or criticised by the court, potentially weakening a party’s case.
Key Requirements for Affidavits
Structure
An affidavit must be divided into consecutively numbered paragraphs, with each paragraph addressing only one fact or issue. This structure ensures clarity and allows the court and other parties to easily reference specific statements. Clear organisation is particularly important in complex matters involving multiple issues or lengthy evidence.
Identification
On the first page of the affidavit, specific identifying details must be included. These details include the court file number, the full name of the party filing the affidavit, the deponent’s full name, and their residential address unless disclosure would pose a safety risk. The affidavit must also identify the authorised witness before whom it was sworn or affirmed. Accurate identification helps ensure the affidavit can be properly attributed and relied upon in the proceedings.
Content
Affidavits must be confined to relevant facts and admissible evidence. Opinion, speculation, argument, or emotional commentary should generally be avoided unless permitted by the rules or relevant to the issues before the court. The deponent must swear or affirm that the contents are true in the presence of an authorised witness. Both the deponent and the witness must sign the bottom of each page to confirm the affidavit was properly executed.
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. Contact us today at +61 485 872 417, or via our appointments request page, to talk to one of our lawyers about affidavits today.
