An Affidavit is one of the most important documents you will complete…
An affidavit is a sworn or affirmed document that is filed in court together with, and in support of, your application or response. It tells the court why it should make the orders that you seek. Therefore, it is one of the most important documents you will complete.
Not all applications filed in the family courts have to be supported by an affidavit. If you are self-representing then find out if you have to file an affidavit. If you have a solicitor, your solicitor will advise you if you need to file one.
This article aims to assist self-represented parties in drafting an affidavit. If you have a solicitor representing you, use this article to prepare a draft affidavit, or dot points for your solicitor. This may save your solicitor time in drafting your affidavit, and therefore save you costs.
The affidavit must address the relevant issues in your case. If your application is about children, then the affidavit will be about children. If the application is about financial matters, then the affidavit will be about financial matters. If the application is about both, then your affidavit will be about both.
There are important rules about what you can, and cannot put in your affidavit. These rules are contained in Part 15.2 of the Family Law Rules 2004 and Division 15.4 of the Federal Circuit Court Rules 2001. These can be accessed at http://www.comlaw.gov.au/Home.
First, you must have the right format:
- Have enough space between the lines so that the affidavit is easy to read.
- Use a standard font such as Arial or Times New Roman and not a fancy font.
- The size of the font should be 12.
- The affidavit should be divided into paragraphs.
- The paragraphs must be numbered.
- Each paragraph should be short and deal with one issue only.
- Use subheadings that separate the issues in your affidavit.
Once you have the correct format, start working on your content. You may do that by putting your story into headings. For example:
a. Background information: include names, ages and health of the parties, the date of cohabitation, date of marriage, date of separation, date of divorce, and dates of birth of the children. For example:
- I am aged 28 and am in good health.
- My former partner is also aged 28 and is also in good health.
- We commenced cohabitation on 1 January 1990 and married on 1 January 1991.
- We separated on 1 January 2014. We are not yet divorced.
b. Financial information: include a summary of who did what at the commencement of cohabitation, who did what during the relationship, your respective incomes then and now, who made home maker contributions, whether either of you made negative contributions such as gambling, and other contributions such as gifts, winnings, or inheritances. For example:
- At the commencement of our relationship we were both employed full time. I worked as a child carer earning approximately $30,000 per annum, and my former partner worked as a baker earning approximately $40,000 per annum.
- At the commencement of our relationship we had no debts. We were renting and were pulling our finances together.
- After the children were born I stopped work and became a home maker. My former partner was the breadwinner.
- During our cohabitation, in or around 2002, we were gifted $50,000 by my parents. We used that money as a deposit on our first home.
- Around 2 years later my former partner inherited $50,000 from his later mother’s estate, but I don’t know what happened to that money.
- In the 2 years before separation my former partner loaned $10,000 to a friend. This was without my consent, and I do not know what that money was used for. This money was not repaid.
- I returned to work a year ago, when the children no longer needed a full time carer at home. I currently work as a child carer, earning $30,000 per annum. My former partner works as the head chef, earning $100,000 per annum.
- Our current assets are:
- Our home, valued at approximately $400,000
- My Mazda motor vehicle valued at approximately $15,000
- My former partner’s motor vehicle valued at approximately $15,000
- My superannuation of $50,000
- My former partner’s superannuation of $300,000
- Our current debts are:
- Mortgage on our home of $150,000
- Credit card debts in joint names of $10,000
- Our net assets are therefore $620,000.
c. Children: outline how the children have been taken care of before separation and since separation, whether they have any special needs, their ages, and the nature of their relationship with each parent and other family members. For example:
- The children had a good relationship with both myself and my former partner before our separation.
- My former partner is a good parent and had a strong relationship with the children.
- However, since separation, my former partner has spent very little time with the children. I have concerns that the younger children’s relationship with my former partner is deteriorating. Often, they refuse to spend time with my former partner and don’t want to talk on the phone when my former partner rings.
- I also have concerns that my former partner’s new partner does not treat the children well when they spend time with them. Often the children cry that they are called names such as “stupid”, “lazy”, or “fat”. I have raised these concerns with my former partner, but my former partner denies that this takes place.
- I want my children to have a strong relationship with my former partner and I am willing to do anything that is necessary to facilitate that. However, I do not want the children to be in an environment where they are bullied or harassed as this is harmful to them.
d. The orders that you want (and why they should be made): you have to justify why the orders that you seek should be made. If you seek that the children should have limited time with the other parent, then you must have evidence which would warrant that order being made. If you seek 70% of the total asset pool, then you must explain why this is fair and just in your circumstances.
The most important thing to remember is that everything in the affidavit must be relevant to the dispute between you and your former partner. One of the biggest mistakes parties make is including irrelevant material. Avoid this temptation. You risk having parts of your affidavit struck out. This includes allegations such as your former partner being unfaithful or narcissistic, or other scandalous or argumentative material that does not have any bearing on the safety or well-being of the children. For example, if you allege that your former partner’s cross dressing habits or work as an exotic dancer mean that the children should be spending limited time with that parent, then you must have evidence to show how that habit or occupation is harming them.
The type of evidence that you could consider annexing to your affidavit, which is relevant to children’s issues, would be:
- School reports or letters from individual teachers as to the children’s progress before the separation and after the separation, or any specific problems noted that are relevant to the separation. It may be that these letters say that the children are doing wonderfully, and this may be an indication that the current parenting arrangements are good for them.
- Medical reports or letters from the children’s treating practitioners as to any medical condition or necessary treatment, and how the condition or treatment impacts on the children’s routine, or the current parenting arrangements.
- Police file or Child Safety records will be relevant where there are serious allegations such as violence, sexual abuse, or other harm to the children, and these would be obtained by a Subpoena and delivered to the family courts.
Do not obtain letters from your children telling the court who they want to live with. Involving the children in your legal dispute is inappropriate and obtaining such letters from children could have severe consequences for you.
The type of evidence that you could consider annexing to your affidavit, which is relevant to property issues, would be:
- Bank statements showing significant deposits or credits.
- Testamentary documents showing inheritances.
- Documentary evidence of gambling such as casino membership records.
Any valuations that you obtain of your property should be annexed to an affidavit of the valuer, and not yourself. Do not annex large financial documents, such as bank statements, to your affidavit. Either annex the relevant part of the statement, or refer to it in your affidavit and say that it will be produced to the court when required.
A good guide of other relevant matters that you should address in your affidavit is to follow those matters listed in section 75(2) (http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s75) of the Family Law Act (in financial matters), or section 60B (http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60b) and 60CC (http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc) of the Family Law Act (in children matters).
Finally, do not to make your affidavit excessively long, as it can be struck out on that basis. If you keep it relevant, short, and to the point, you will be assisting the court in making the right decision for you and your children.