What is an affidavit?
An affidavit is a formal written statement and is the main way of presenting evidence (the facts of the case) to the court.
When do I need to prepare an affidavit?
A person filing an application or response in the Federal Circuit Court, whether seeking final, interim or procedural orders must (other than divorce) also file an affidavit stating the facts relied on in their case.
If you are relying on evidence from a 3rd party to support your case, such as a family member, friend or professional, they will need to file a separate affidavit with the court.
What does an affidavit look like?
The contents of the affidavit must be divided into paragraphs and numbered. Each paragraph should, if possible, cover one topic or subject matter.
It is helpful if the affidavit is divided into sections under separate headings, for example – 'arrangements for the children pre and post separation' or 'property accrued during the marriage'.
The person making the affidavit (the deponent) must sign each page of the affidavit in the presence of a qualified witness. On the last page of the affidavit the following details must be set out (known as a jurat):
the full name of the person making the affidavit, including signature
whether the affidavit is sworn or affirmed
the day and place the person signs the affidavit
the full name and occupation of the witness, including signature
If any alterations (such as corrections, cross-outs or additions) are made to the affidavit, the person making the affidavit and witness must initial each alteration made.
What can I say in an affidavit?
An affidavit is a statement of facts. Therefore you should include all the facts relevant in your case. Importantly, your affidavit should support the orders you have asked the court to make in your application or response.
The length of your affidavit will depend on the complexity of your case. Your affidavit does not need to be lengthy so long as you include all the facts that you will be relying upon as evidence. Also be mindful not to leave out any relevant information, as you may not get a chance to add it in later.
Can I give oral evidence in court?
Evidence in a case may be given by affidavit or in person (known as oral evidence). In practice, most evidence is provided by affidavit and the situations where people can give oral evidence in court are limited.
What should not be included in an affidavit?
Generally an affidavit should not set out the opinion of the person making the affidavit. The exception is where the person is giving evidence as an expert, such as a 'psychologist' or 'licensed valuer'.
Where possible you should avoid referring to facts based on information received from others, rather than personal knowledge (known as hearsay evidence). However, there are a number of exceptions to the hearsay rule. If you are planning on using hearsay evidence in your affidavit, you should first obtain legal advice to see whether it would be admissible in court or not.
If you need to refer to any relevant document to support facts in your affidavit you must attach a copy of the document to your affidavit, for example – a contract or child's school report. The document is then referred to as an 'annexure'.
If there is more than one annexure refer to each by a number or letter, for example – 'Annexure 1' or 'Annexure A'. You must also provide page numbers, and if there is more than one annexure, the page numbers must run consecutively until the last page of the last annexure.
Each annexure must bear a statement signed by the witness identifying the annexure as the document referred to in the affidavit. The wording of the statement is as follows:
This is the document referred to as Annexure 1 in the affidavit of [insert deponent's name] sworn/affirmed at [insert place] on [insert date] before me [witness to sign and provide name and qualification].
The statement must be signed at the same time as the affidavit and by the same witness.
Can I prepare my own affidavit?
Although you can prepare your own affidavit, it is often not an easy task. You will need to do a lot of preparation before preparing an affidavit and filing it with the court.
Court staff can give you some basic information about preparing an affidavit, but cannot guide you or advise what you should include or not include in your affidavit.
Only a lawyer will be able to advise you about the content and rules that apply when preparing an affidavit.
You can access a lawyer at a legal aid office, community legal centre or private law firm.
Where can I get a copy of an affidavit?
Obtain a copy from the court's website under the forms section. In most cases, an affidavit will be longer than one page. If this applies in your situation, start your affidavit on the first page and continue onto subsequent pages.
This fact sheet provides information only and is not a substitute for legal advice.