Lexi Webster
An affidavit is a formal statement of facts that is sworn to be true and used as evidence in court proceedings. In Australia, an affidavit must be signed in the presence of an authorised witness, such as a justice of the peace or a lawyer, to be legally recognised. When preparing an affidavit, it is important to include all relevant facts and leave out anything irrelevant or that could be considered opinion. This ensures the affidavit is clear, concise, and credible. The affidavit should be divided into paragraphs, with each paragraph covering only one aspect of the subject matter. While an affidavit can be prepared by oneself, it is often not easy, and legal advice should be sought if needed.
| Characteristics | Values |
|---|---|
| Format | Typed in size 12 font, printed on one side only of the paper, with each page numbered consecutively |
| Paragraphs | Divided into paragraphs that are numbered. Each paragraph should cover one topic or subject matter |
| Length | Should not be lengthy. In family law proceedings, it should not exceed 10-25 pages in length, depending on the division of the court |
| Content | Should include a title, statement of identity, statement of truth, statement of facts, and a closing statement of truth |
| Facts | Should include all facts relevant to the case and leave out things that are not relevant to what the court has to decide |
| Opinion | Should not include the opinion of the person making the affidavit but should be based on facts |
| Evidence | Should include all evidence being relied on. If relying on evidence from a third party, a separate affidavit must be filed on their behalf |
| Attachments | Documents can be attached as evidence and referred to in the affidavit |
| Signature | Must be signed in the presence of an authorised witness, such as a justice of the peace, lawyer, or other approved witness |
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What You'll Learn
Formatting requirements
The formatting requirements for an affidavit in Australia are relatively straightforward. Firstly, the affidavit should be typed in a size 12 font and printed on one side only of the paper, with each page numbered consecutively. The affidavit should be divided into paragraphs that are numbered, and each paragraph should ideally cover a single topic or subject matter. It is also advisable to use separate headings to break up different topics or subject matter. For example, a heading might be 'Arrangements for the children after separation'.
Each paragraph should contain no more than six lines, and any evidence from a third party that supports your case, such as a family member, friend, or professional, should be included in a separate affidavit. If you are relying on a document as evidence, you can attach it to your affidavit, but you must refer to the attachment in your affidavit and number each attachment.
The affidavit should begin with a statement of identity, where you briefly introduce yourself to the court, and a declaration that the information you are providing is true. The main body of the affidavit should then list the facts clearly, one per paragraph, ensuring all necessary details are included while remaining objective and free from personal opinion. Finally, the affidavit should end with a closing statement of truth, where you reaffirm that everything stated is accurate and true, and your signature, which must be witnessed and dated by an authorised witness such as a justice of the peace, lawyer, or other approved witness.
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What to include
An affidavit is a written statement where the contents are sworn or affirmed to be true. It should include all the facts that are relevant to your case, and the evidence you are relying on. Affidavits should be concise, clear, and only include what is necessary for the Court to decide.
Firstly, your affidavit should have a title that reflects your name and the case details, for example, "Affidavit of John Smith".
Secondly, you should include a statement of identity. Here, you will introduce yourself to the court, including your name, age, occupation, and address.
Thirdly, you will need a statement of truth, where you declare that the information provided is true to the best of your knowledge and belief.
Fourthly, the statement of facts. This is the main body of your affidavit, where you list the relevant facts, one per paragraph, ensuring you include all necessary details. Each paragraph should cover only one topic, with a maximum of six lines per paragraph. If you are relying on evidence from a third party, you will need to file a separate affidavit on their behalf, attaching any relevant documents and referring to them in your affidavit.
Finally, you should include a closing statement of truth, where you reaffirm that everything stated is true.
Your affidavit must be signed in the presence of an authorised witness, such as a justice of the peace, lawyer, or other approved witnesses. The witness will also sign and date the affidavit.
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What not to include
When preparing an affidavit, it is important to remember that it is a formal statement of facts, not opinions or beliefs. Affidavits should be concise and only include information that is relevant to the case.
- Opinions or beliefs: An affidavit should be based on facts, not personal opinions or beliefs. Avoid including any statements that reflect your views or interpretations of events. For example, you can include details of conversations, but not what you think are the reasons behind those conversations.
- Irrelevant information: Focus on providing only the relevant facts that support your case. Leave out any information that is not directly related to what the Court needs to decide. This helps ensure your affidavit is clear and concise.
- Settlement negotiations: Do not refer to any documents or discussions related to settlement negotiations. These are not admissible as evidence in Court and should be excluded from your affidavit.
- Lengthy explanations: While it is important to provide clear and concise information, avoid unnecessary lengthy explanations. Each paragraph should ideally cover a single topic or subject matter and be no more than six lines. The entire affidavit should be as concise as possible while still including all relevant facts.
- Unauthorised attachments: If you are relying on a document as evidence, you must refer to it in your affidavit and attach it consecutively numbered. However, be mindful of any limitations set by the Court on the number of attachments allowed. Unauthorised attachments may result in your affidavit being rejected for filing.
- Unsigned statements: Your affidavit must be signed in the presence of an authorised witness, such as a justice of the peace, lawyer, or another approved witness. Both you and the witness must sign and date the affidavit for it to be legally recognised in Australia.
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Witnessing and signing
Once you have prepared your affidavit, it is time to sign and finalise the document. An affidavit is a formal statement, and signing it confirms that the information provided is accurate and truthful.
The final step in preparing your affidavit is to sign the document in the presence of an authorised witness, such as a justice of the peace, lawyer, or other approved witness. This step is crucial for ensuring your affidavit is legally recognised in Australia. The witness will also sign and date the affidavit.
It is important to note that if you are illiterate, vision-impaired, do not have a strong command of English, or are otherwise unable to sign an affidavit, an alternative jurat is supplied at the bottom of the affidavit form. For more information about the requirements for an alternative jurat, refer to the relevant court rules.
If you are relying on evidence from a witness (not an applicant or respondent) to support your case, you will need to file a separate affidavit on their behalf. For example, you would need to file an affidavit if you want the court to consider evidence from a family member, friend, or professional. Each paragraph in the affidavit must deal with only one aspect of the subject matter and should be numbered.
Remember, your affidavit should be concise and only include relevant facts. It should not include your opinions or beliefs but rather the facts of the matter, such as conversations with others and any relevant documents, which should be attached and referred to in your affidavit.
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Filing and serving
The person making an affidavit is known as the deponent. The deponent must sign the affidavit in the presence of an authorised person, such as a lawyer, a Justice of the Peace, or a public notary if overseas. The authorised person will ask the deponent to swear (a religious oath) or affirm (a non-religious oath) that the contents of the affidavit are true. The deponent must then sign each page of the affidavit. The authorised person witnessing the affidavit must also sign the affidavit.
If more than one document is referred to in the affidavit, these must be combined into a single 'bundle exhibit', in a single, fully text-searchable PDF format file, with legible page numbers. Each page of the exhibit should be numbered consecutively, and the exhibit is served with the affidavit but is not usually filed with the court. If you need to attach a large number of documents, you can prepare an 'exhibit'.
If you are relying on evidence from a third party, such as a family member or friend, you will need to file a separate affidavit on their behalf. You should only file an affidavit by a witness if the evidence is relevant to your case. If you need to correct an affidavit, for example, by adding additional factual material, you must prepare, file, and serve a new affidavit.
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Frequently asked questions
An affidavit is a written statement where the contents are sworn or affirmed to be true. It should set out facts, not opinions.
An affidavit should include a title, a statement of identity, a statement of truth, a statement of facts, and a closing statement of truth. It should be divided into paragraphs that are numbered, with each paragraph covering only one topic or aspect of the subject matter.
The affidavit should be typed in size 12 font and printed on one side of the paper. Each page should be numbered consecutively. If you want to rely on a document as evidence, you can attach it to your affidavit and refer to it in your statement.
An affidavit should be signed in the presence of an authorised witness, such as a justice of the peace, lawyer, or other approved witness. The witness will also sign and date the affidavit.
An affidavit should be filed with an application, response, or when directed by the Court. The Court may make procedural orders giving you permission to file an affidavit.
