The Importance of Affidavit Writing

by Kate Marr on June 20, 2016

Kate Marr

An Affidavit is a written document setting out the evidence of a particular person filed at court in support of orders sought in the proceedings.

Affidavits are required to be filed at different stages of court proceedings. If interim orders are sought, then an Affidavit is required to be filed at the time of filing the interim application or response. Otherwise, Affidavits are required to be filed as a matter progresses at Court, as directed by the Court.

The length of the Affidavit will vary depending on the Court the proceedings are filed in and the complexity of your case. It is very easy to set out the entire history of your relationship and all your concerns (for instance regarding parenting issues). However, sometimes there is real utility in keeping the Affidavit as succinct as possible, drawing the Judge’s attention to the evidence that is key to the issues to be determined.

Affidavits should be limited to all facts that are relevant in your case, and unless you are an expert, should not include your opinions. There are other matters that should not be included in any Affidavit, without properly considering if an exception applies pursuant to the Evidence Act 1995 (Cth). Including reliance on statements or documents in respect to settlement negotiations, and reliance on statements based on information received from others, that is commonly referred to as “hearsay” evidence. To reduce the risk of the other party making an application that part of or the entire Affidavit is inadmissable, legal advice should be sought prior to filing any Affidavit containing such evidence.

Interim hearings are normally decided after consideration of the Affidavits and submissions of the legal representatives only. At final hearings, despite being directed to prepare “trial Affidavits” it is not uncommon for counsel in cross examination to refer the witness to previous Affidavits filed. Therefore, it is vital to file an Affidavit that is well drafted.

While you may decide to draft your own Affidavit, it is often difficult and could be detrimental to your case. Therefore, you should seek legal advice and assistance when preparing your Affidavit.

All lawyers within our family law team have experience in preparing Affidavits in their proper form. If you wish to seek advice in respect to your court proceedings, with a view of engaging our firm to act on your behalf in your court proceedings, please contact our office.

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