Guide to Preparing your Affidavit
An affidavit is a written statement where the contents are sworn or affirmed to be true. Affidavits must be signed in front of an authorised person. After witnessing your signature the authorised person must also sign the affidavit. An authorised person is usually a Justice of the Peace (JP), a Solicitor or Barrister.
Affidavits are used in court as evidence. They should be considered to be a tool designed to assist a Judge or Magistrate to determine the facts of the case.
It is very important that you focus on writing about facts and events that you have witnessed, not on your opinions or what others may have told you.
It is also important to determine what you are seeking in Court. If you are seeking Shared Care for instance, the focus of your affidavit should be on your co-operation with the other parent in the past, and your efforts to forge a collaborative parenting relationship. If you focus solely on condemning the other parent, you are as a result providing a good argument against Shared Care.
Who can make an Affidavit
An affidavit can be made by:
- a plaintiff or applicant
- a defendant or respondent
- experts who have knowledge relevant to a case.
What should be in the Affidavit
Affidavits must be divided into numbered paragraphs.
1. On 5 August 2009 I met the defendant…
2. On 17 December 2009 I telephoned the defendant and said…
Affidavits should be written in the first person, that is from the point of view of the person making the affidavit, and using the word ‘I’. If the affidavit refers to a conversation, you should write down the exact words used by the parties. For example:
I said “…” then he said “…”
If you can’t remember the exact words that were used you can say;
To the best of my recollection he said “…”
The affidavit should state things that the person making the affidavit has direct knowledge of – what they saw and heard.
It is important to make sure the affidavit includes:
- the name, address, and occupation of the deponent (the person swearing or affirming the affidavit)
- the date it is sworn or affirmed
- the signature of the deponent (person writing the affidavit) and the authorised person at the end of the affidavit
- the deponent’s signature on the bottom of each page of the affidavit
- the signature of the authorised person on the bottom of each page of the affidavit.
The affidavit should not include:
- the opinion of the person making the affidavit (unless it is an affidavit by an expert)
- statements that are based on information from others (known as hearsay evidence) rather than what the deponent has seen or heard themselves
- views on the law and how it applies in the case.
*Make sure the affidavit is brief, follows a chronological order, and only contains relevant information. If you make an error cross it out and put your initials next to the change. The authorised person must also initial next to the change.
*Affidavits should be typed (double line spaced and 12 point font) or clearly hand written. The websites for most courts and tribunals will have affidavit forms.
*Despite the fact that you make wish to tell the whole story, you should be aware that most of the events that have occurred are legally insignificant. You must focus on legally important matters to ensure that your affidavit is brief.
*As a guide, an Affidavit for an Interim matter should be between 3 to 5 pages long, if it is simply a child residence issue. For a final matter in this same situation, a 10 page affidavit would be considered optimal.
It is sometimes helpful to attach a document to the affidavit, that supports the fact you are trying to prove. The document is then known as an ‘annexure’.
Each annexure that is attached must be numbered. For example; Annexure ‘A’, Annexure ‘B’, Annexure ‘C’. Each annexure must also have a statement written on its front page that says:
This is the document referred to as Annexure [insert reference number] in the affidavit of [insert deponent’s name], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].
The authorised person signs each annexure after this statement.
Examples of common annexures include emails, phone records, letters, transciptions of SMS texts, medical documents, school reports, etc.
Signing the Affidavit
You need to take the affidavit to an authorised person before you sign it. The authorised person will ask you to swear or affirm that the content of the affidavit is true, and then ask you to sign the end of the affidavit, and the bottom of each page of the affidavit.
After they have witnessed you signing the affidavit, the authorised person will also sign the end of the affidavit, the bottom of each page and any annexures.
Swear or affirm
The person making the affidavit can choose whether to swear or affirm the truth of the affidavit.
Swearing is also known as swearing an oath. A person who believes in a god can swear by their god that the affidavit is true. The authorised person may offer them a Bible or other relevant holy book to hold while they swear the oath.
An affirmation is a solemn declaration of truth, without any reference to a god.
Filing and serving the Affidavit
You only need to file and serve the Affidavit when you are ordered to do so by the court. If you are ordered to file an affidavit you can do this at the court where the matter is being heard.
*Make sure the affidavit is filed and served by the date ordered by the court.