Written by Marie Fedorov of FEDOROV Family Lawyers
You are going through the divorce process and have decided to represent yourself. This in itself is a massive decision and one that can bring with it a series of significant challenges, including the burden associated with preparing a substantial number of documents for the Court.
While I always recommend engaging a professional when undertaking such tasks, at times I understand circumstances prevent that from happening. It is also important to note prior to starting your own affidavit, that while court staff can help you with questions about the court forms and process, they are not in a position to provide you with legal advice.
Following the steps outlined below will help put you on the right path if you need to write your own affidavit for the Family Court.
What should I put in my affidavit?
All affidavits that are provided to the Family Court should be typed, with the paragraphs holding the content of the affidavit, allocated into numbered paragraphs.
I always ensure that the start of my client’s affidavit provides some ‘pre-separation’ background. This information may include facts such as when the relationship commenced, date of separation, children’s particulars such as their ages and dates of birth, who was working and who was not working during the relationship, any difficulties that the family faced (such as domestic violence, drug and alcohol addictions, etc.) any special needs that the children have, the contributions that you made at the beginning of the relationship, during the relationship and post separation such as still paying the mortgage. This will provide the court with a bit of background regarding the situation.
Next, your affidavit should provide some information about the separation. It is imperative to keep it professional and not too emotionally-driven – provide facts only. I like to include how the children spend their time with each parent and their communication. It would also be appropriate to explain who else may live in each home with the children following the separation and what role that these other individuals are expected to play in the children’s lives.
Don’t forget to include headings for all your information. Some examples of these headings could be, ‘Background on the relationship’, ‘Proposed arrangements for the children’, and ‘Current Assets, Liabilities and Financial Resources’.
I ensure that the affidavits that are written for my clients have sections that follow on logically from one another and only include relevant facts. At times, our emotions can get in the way of facts which will turn your strong application into a weak emotionally-driven one.
Make sure that you annex any supporting documents such as text messages, emails and photographs to your affidavit and refer to them in the relevant paragraph – for example ‘Annexed and marked with the letter ‘AB1’ is a true and correct copy of text message from X to Y dated 1 January 2019’ and then mark the document with ‘AB1’ so that it is easily identifiable.
What can I and can’t I say in an affidavit?
The purpose of an affidavit is to provide facts and only facts to the Court. If you were to put a false claim in your submission, you would be committing perjury, which is an offence that could land you in jail. It is important that your affidavit supports the orders that you have requested the Court to make. Leaving out information that isn’t relevant will ensure a quicker process for all involved.
You should avoid referring to ‘facts’ that are based on information received from others. This may be considered ‘hearsay evidence’ in Court and may hinder your situation.
You should also avoid giving your opinion. You are not an expert in parenting so there is no point saying ‘in my opinion it would be in the children’s best interests for them to live me’ as this will not be considered. What is relevant to the Court is that you can provide for the children financially and emotionally. So, you are better off writing about your accommodation, your hours of work being flexible so that you can pick the children up from school or day care, can help them with their homework, get them to their sporting events and talk about the relationship that you have with the children. This will show the Court the type of parent that you really are and this will paint the picture for the Judge.
What are some of the legalities that may catch you out?
File your Court documents in accordance with the Court’s directions. If the Court directs you to file certain documents with the Registry by a certain date then make sure that you comply with these directions and file in time. You don’t want to get back to Court and have to tell the Judge that you ran out of time or didn’t get around to it as the Application may be heard that day without your material before the Court which means the Judge may not be able to consider your side of the story and this can be detrimental to your case.
Make sure that you serve the other party with your Court documents. You can’t just file your documents with the Court, you then must serve the documents on the other party to give them a reasonable opportunity to consider your material and respond if necessary.
You, the author, must also sign the bottom of every page of the affidavit in the presence of an authorised person - either a lawyer or Justice of the Peace. You can often find Justice of the Peace at your local shopping centre, or even reach out to your Facebook friends – there are a lot of them out there! Just make sure it is someone that you can trust and that they are qualified to witness your documents.
On the final page of your affidavit, you must set out the following details (this is known as a Jurat):
- Your full name (as the author of the affidavit) including your signature
- Whether the affidavit being submitted is sworn or affirmed
- The day and the place that you have signed the affidavit
- The full name and occupation of the authorised person who was in your presence while signing off the affidavit, including their signature
This article provides general information and does not constitute legal advice. It is always important to seek professional legal advice.
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