What is an Affidavit in Australian Family Law?

Greystone Family Law (Australia)

An affidavit is a pivotal document in Australian family law, serving as a sworn written statement that presents evidence to the court. It allows individuals to convey facts pertinent to their case, ensuring that the judicial process is informed by accurate and firsthand accounts.

Definition and Purpose

In the context of family law, an affidavit is a formal declaration of facts, sworn or affirmed to be true by the person making the statement, known as the deponent.

Legal Requirements

The Federal Circuit and Family Court of Australia (FCFCOA) provides specific guidelines for preparing affidavits. According to the FCFCOA, an affidavit should:

• Be written in the first person: Use "I" statements to present facts directly.
• Contain only facts: Opinions, beliefs, or hearsay should be excluded unless they are directly relevant and admissible.
• Be structured logically: Present information in a clear and organized manner, often using numbered paragraphs for ease of reference.
• Include relevant evidence: Attach copies of documents or records that support the statements made, referred to as annexures.

It's essential that the affidavit is sworn or affirmed before an authorized witness, such as a Justice of the Peace, a lawyer, or a notary public. This process involves the deponent signing the affidavit in the presence of the witness, who then also signs to confirm that the oath or affirmation was properly administered.

When Are Affidavits Used?

Affidavits are utilized in various stages of family law proceedings, including:

• Initiating applications: When commencing legal action, an affidavit may be required to outline the facts supporting the application.
• Interim hearings: To provide evidence for temporary orders, such as those relating to child custody or spousal support, pending a final decision.
• Final hearings: Affidavits serve as primary evidence, detailing the deponent's account of relevant events and circumstances.

In some cases, the court may direct parties to file affidavits to address specific issues or provide additional information. It's important to note that affidavits are a substitute for oral evidence, meaning that the information contained within them carries significant weight in the court's deliberations.

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